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Table of Contents for The Modern Law Review. List of articles from both the latest and EarlyView issues.
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The Authority and Interpretation of Regulations

Fri, 2019-07-19 20:13
Abstract

In the past half century, governments have increasingly relied on regulations—secondary legislation issued by administrative bodies and departments—to impose obligations on private parties, multiplying the occasions for regulatory interpretation. This article develops a theory of regulatory interpretation. It argues that such a theory involves understanding the authority of regulations. Turning to the public law of the UK, US, and Australia, this article identifies an intriguing similarity; in each case, regulations have authority when they rationally and nonarbitrarily implement delegated power within the means permitted by statute. The article then argues that this account of regulatory authority justifies a common approach to interpretation in which the object of interpretation is the purpose the regulation seeks to implement, discerned from the regulation's text and accompanying explanation of its purpose, and constrained by background legal norms.

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The Pension Trust: Fit For Purpose?

Thu, 2019-07-18 15:00
Abstract

The law of trusts plays an integral and multi‐faceted role in the regulatory scheme shaping the occupational pensions arena in Australia and the United Kingdom. It facilitates the operation of private law modalities, such as innovation and competition. However, that openness also renders members’ interests vulnerable and the lack of transparency and emaciated accountability mechanisms within trust law undermine the powerful normative force exerted by the language in which trust doctrine is so often couched. That said, the regulatory regimes buttress, and rely upon, the protections offered by trust law. The result is a compelling illustration of the nuanced way in which private law is employed in a modern regulatory state.

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Reason‐Giving in Administrative Law: Where are We and Why have the Courts not Embraced the ‘General Common Law Duty to Give Reasons’?

Thu, 2019-07-18 14:59
Abstract

This article has two aims. Firstly, it explores a body of modern challenges to administrative reason‐giving, decided in the five‐year period 2014–2018. Three main themes are drawn out: outright failures to give reasons now seem to be a rare occurrence; a number of considerations help to ensure that at least an outline of reasons is usually offered by decision‐makers; common law fairness plays a limited role in testing the adequacy of reasons. Secondly, it addresses the question of why the courts have not embraced a ‘general common law duty to give reasons.’ Four factors are discussed: doubts that introducing a general duty would add something of substance to the law; difficulties inherent in developing a general formulation of the reasons required; weaknesses in the ‘hortatory’ case for a general duty and weaker commitment on the part of judges than academics to generality as a central feature of administrative law doctrine.

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Executive Environmental Law

Thu, 2019-07-18 14:58
Abstract

The Draft Environment (Principles and Governance) Bill published by DEFRA in late 2018 is part of a process of reimagining environmental law in light of Brexit. The Draft Bill creates frameworks for policy statements on environmental principles and environmental implementation plans, as well as creating a new enforcement body – the Office for Environmental Protection. This Draft Bill is, at the very least, an ineffectual response to the challenges of environmental law post‐Brexit. More alarmingly, it raises the possibility of a legal future in which the executive dominates how the norms, ambitions, and accountabilities of environmental law are defined. These are matters of concern for environmental and public lawyers alike.

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System, Order, and History as a Conceptual Repository in International Law

Fri, 2019-06-28 20:52
The Modern Law Review, EarlyView.
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Religious Freedom and Religious Antidiscrimination

Thu, 2019-06-27 09:07
Abstract

This article develops a theoretical framework that prompts a new understanding of the role of religious freedom and religious antidiscrimination in human rights law. Proceeding from the prevailing theoretical and doctrinal uncertainty over the relationship between the two rights, which are currently seen as either synonymous or as distinct and in competition, the article develops an account of the moral right to ethical independence and argues that religious freedom and religious antidiscrimination share their main normative basis on that moral right. However, religious freedom and religious antidiscrimination have different emphasis, and both are essential to secure fair background circumstances for the pursuit of different individual plans of life. The proposed framework illuminates the relationship of individual and collective aspects of religious freedom with discrimination law. The analysis has crucial implications for human rights interpretation in cases involving state interference with liberty, in relation to religion or belief, and more broadly.

Categories: Journals