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Cambridge Law Journal
Journal Prestige (SJR): 0.213
Number of Followers: 164  
  Hybrid Journal Hybrid journal (It can contain Open Access articles)
ISSN (Print) 0008-1973 - ISSN (Online) 1469-2139
Published by Cambridge University Press Homepage  [367 journals]
  • CLJ volume 77 issue 1 Cover and Front matter
    • PubDate: 2018-03-01T00:00:00.000Z
      DOI: 10.1017/S0008197318000260
      Issue No: Vol. 77, No. 1 (2018)
  • CLJ volume 77 issue 1 Cover and Back matter
    • PubDate: 2018-03-01T00:00:00.000Z
      DOI: 10.1017/S0008197318000272
      Issue No: Vol. 77, No. 1 (2018)
    • Authors: Andrew Sanger
      Pages: 1 - 5
      Abstract: TWO decisions of the Supreme Court – Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs [2017] UKSC 62, [2017] 3 W.L.R. 957, and Reyes v Al-Malki [2017] UKSC 61, [2017] 3 W.L.R. 923 – demonstrate the limitations of state and diplomatic immunity in employment disputes, and raise important questions concerning the interaction between immunity and other rules of international law.
      PubDate: 2018-03-01T00:00:00.000Z
      DOI: 10.1017/S0008197318000120
      Issue No: Vol. 77, No. 1 (2018)
    • Authors: Mark Elliott
      Pages: 5 - 8
      Abstract: MISAPPREHENSIONS about the UK's constitution are ten-a-penny. Most prominent among them, perhaps, are the notions that the UK “has no constitution” and that fundamental rights cannot meaningfully exist without an “entrenched” or “written constitution”. To that list of misunderstandings can now be added the ideas – brought to light by the Supreme Court's judgment in R. (UNISON) v Lord Chancellor [2017] UKSC 51, [2017] 3 W.L.R. 409 – that the judicial system, far from being a non-negotiable feature of any constitutional democracy, is nothing more than a public service, and that access to it can be regulated by the executive accordingly. To describe UNISON as a welcome corrective to such misconceptions would be to engage in rash understatement. In a tour de force that ought to be compulsory reading for every Minister and parliamentarian, the Court elucidates the true value of independent courts and tribunals, illuminates the common law's potential as a guarantor of basic rights, and reiterates an axiomatic set of constitutional home truths.
      PubDate: 2018-03-01T00:00:00.000Z
      DOI: 10.1017/S0008197318000132
      Issue No: Vol. 77, No. 1 (2018)
    • Authors: Elaine Freer
      Pages: 9 - 12
      Abstract: In Riddell [2017] EWCA Crim 413, [2017] 1 W.L.R. 3593, the Court of Appeal held that self-defence could be a defence to an offence not inherently involving the use of force, namely, dangerous driving.
      PubDate: 2018-03-01T00:00:00.000Z
      DOI: 10.1017/S0008197318000144
      Issue No: Vol. 77, No. 1 (2018)
    • Authors: Rita Cheung
      Pages: 12 - 15
      Abstract: SIR Brian Leveson's approval of the third deferred prosecution agreement (DPA) in Serious Fraud Office v Rolls-Royce plc [2017] Lloyd's Rep. F.C. 249 is the most significant addition to the growing canon of case law on DPAs. This new enforcement tool was added to the UK prosecutors’ armoury by the Crime and Courts Act 2013. Following the successful use of deferrals to tackle corporate crime in the US, the Act allows an organisation to avoid prosecution for certain corporate crimes by entering into an agreement with a designated prosecutor, under court supervision, whereby prosecution is deferred pending successful compliance with certain conditions, which may include payment of a substantial fine.
      PubDate: 2018-03-01T00:00:00.000Z
      DOI: 10.1017/S0008197318000156
      Issue No: Vol. 77, No. 1 (2018)
    • Authors: Simon Deakin
      Pages: 15 - 18
      Abstract: ON 18 October 2017, the UK Supreme Court decided Armes v Nottinghamshire County Council [2017] UKSC 60. The Court ruled that a local authority could be vicariously liable for intentional torts committed by foster parents against a child whom the authority had placed in their care. The outcome was not entirely unexpected. Less than two decades ago it would have been inconceivable. After all, isn't it the case that the common law does not recognise a general principle of liability in tort for the acts of third parties' And that in so far as it does, it holds an employer vicariously liable for a tort committed by an employee in the course of their employment' This is a very long way from the facts of Armes.
      PubDate: 2018-03-01T00:00:00.000Z
      DOI: 10.1017/S0008197318000168
      Issue No: Vol. 77, No. 1 (2018)
    • Authors: Graham Virgo
      Pages: 18 - 22
      Abstract: THE key issue for determination by the Supreme Court in Ivey v Genting Casinos (UK) Ltd. [2017] UKSC 67, [2017] 3 W.L.R. 1212 was whether the crime of cheating at gambling, contrary to s. 42 of the Gambling Act 2005, requires proof of dishonesty. Even though the Court unanimously held that it did not, the Court went on to consider the appropriate test of dishonesty in both criminal and civil law and, in doing so, adopted a unified test which is essentially objective.
      PubDate: 2018-03-01T00:00:00.000Z
      DOI: 10.1017/S000819731800017X
      Issue No: Vol. 77, No. 1 (2018)
    • Authors: Paul S. Davies
      Pages: 22 - 25
      Abstract: WELLS was struggling to sell some flats. He mentioned this to a neighbour, who put Wells in touch with Devani. Wells and Devani spoke over the telephone. The trial judge found that Devani told Wells that he was an estate agent, and his usual commission was 2% + VAT. Wells agreed to this, but the parties did not expressly agree upon what was to trigger the commission. Devani subsequently introduced a purchaser to Wells who bought the flats. Was there a binding contract between Wells and Devani' Lewison and McCombe L.JJ. answered “No” (Wells v Devani [2016] EWCA Civ 1106, [2017] Q.B. 959). The trial judge and Arden L.J., dissenting in the Court of Appeal, answered “Yes”. The Supreme Court has granted permission to appeal. It is to be hoped that the Justices will clarify the important issues of contract law raised by these simple facts and allow the appeal.
      PubDate: 2018-03-01T00:00:00.000Z
      DOI: 10.1017/S0008197318000181
      Issue No: Vol. 77, No. 1 (2018)
    • Authors: Mark Friend
      Pages: 25 - 28
      Abstract: THE recent judgment of the Court of Justice in Intel v Commission (Case C-413/14 P, EU:C:2017:632) deserves a cautious welcome for signalling a move to a more economics-based approach to the assessment of loyalty rebates under Article 102 TFEU, and for modulating the rigid legal presumptions that have characterised nearly four decades of case law. Yet it also represents a missed opportunity to provide a comprehensive analytical framework for one of the more unsatisfactory areas of EU competition law.
      PubDate: 2018-03-01T00:00:00.000Z
      DOI: 10.1017/S0008197318000193
      Issue No: Vol. 77, No. 1 (2018)
    • Authors: Rumiana Yotova
      Pages: 29 - 32
      Abstract: ON 16 May 2017, the Court of Justice of the European Union (CJEU) delivered its Opinion 2/15 concerning the competence of the EU to conclude the Free Trade Agreement with Singapore (EUSFTA) (ECLI:EU:C:2017:376). The Opinion was requested by the Commission which argued, with the support of the European Parliament (EP), that the EU had exclusive competence to conclude the EUSFTA. The Council and 25 of the Member States countered that the EUSFTA should be concluded as a mixed agreement – that is, by the EU and each of its members – because some of its provisions fell under the shared competence of the organisation or the competence of the Member States alone.
      PubDate: 2018-03-01T00:00:00.000Z
      DOI: 10.1017/S000819731800020X
      Issue No: Vol. 77, No. 1 (2018)
    • Authors: John Eldridge
      Pages: 32 - 35
      Abstract: IN Thorne v Kennedy [2017] HCA 49, the High Court of Australia was presented with an opportunity to consider the operation and intersection of undue influence, unconscionable conduct and duress in the context of marital agreements. Despite hopes that the Court would seize the chance to resolve an important open question in respect of duress, the decision was instead marked by an unhelpful caution, offering little guidance on the law's future development.
      PubDate: 2018-03-01T00:00:00.000Z
      DOI: 10.1017/S0008197318000211
      Issue No: Vol. 77, No. 1 (2018)
    • Authors: William Day
      Pages: 36 - 39
      Abstract: IF no substitute is negotiated for the Brussels Recast Regulation (1215/2012) on “Brexit”, the provisions in the Civil Procedure Rules 1998 (CPR) for permission to serve claims out of the jurisdiction may assume a greater significance in future cross-border litigation. So the timing of the Supreme Court's decision in Four Seasons Holding Inc. v Brownlie [2017] UKSC 80, [2018] 1 W.L.R. 192 is apposite.
      PubDate: 2018-03-01T00:00:00.000Z
      DOI: 10.1017/S0008197318000223
      Issue No: Vol. 77, No. 1 (2018)
    • Authors: John Bell
      Pages: 40 - 71
      Abstract: This article aims to clarify what is meant by “a source of law” argument. A source of law argument justifies an action by showing that it has as its legal basis the best interpretation of a rule, principle or value identified in a material source of law. Such an argument is authority-based in that it appeals for its correctness to a collective decision to adopt a particular rule. The identification comes from an analysis of the practices within a specific legal community. The concept of “a rule of recognition” is not helpful since it glosses over the contestability of what is a source of law and its revisability over time. In a second part, the article illustrates the dynamics of change by reference to the status of EEC/EU law in a number of national laws and the 1966 Practice Statement on precedent in the House of Lords.
      PubDate: 2018-03-01T00:00:00.000Z
      DOI: 10.1017/S0008197318000053
      Issue No: Vol. 77, No. 1 (2018)
    • Authors: Chris Bevan
      Pages: 72 - 96
      Abstract: The doctrine of benefit and burden – an indirect method for enforcing the burden of positive freehold covenants – developed as an exception the strict Austerberry rule that the burden of positive covenants cannot bind successors directly at law. Three recent Court of Appeal cases (Davies v Jones; Wilkinson v Kerdene and Elwood v Goodman) confirm the continued existence and application of the doctrine but also reveal its deficiencies and limitations. This article explores the contemporary application of the doctrine, identifies its theoretical, historical and elemental frailty and, drawing on recent reform proposals of the Law Commission, highlights the case for reform. In so doing, this article argues that a vital theoretical issue has been overlooked in the reform debate: the numerus clausus principle.
      PubDate: 2018-03-01T00:00:00.000Z
      DOI: 10.1017/S0008197318000065
      Issue No: Vol. 77, No. 1 (2018)
    • Authors: J.W. Carter; Wayne Courtney, Gregory Tolhurst
      Pages: 97 - 123
      Abstract: This article compares two models of discharge for repudiation. The first – termed the “mirror image model” – has come to the fore only in recent years. It treats the applicable principles as the mirror image of those that govern discharge for failure to perform a contractual term. Under the second model – the “differentiated model” – repudiation is analysed in terms of various criteria that respond to conceptual diversity within the basis for discharge. The two models diverge, at the heart of the repudiation doctrine, when the issue is whether a reasonable person would regard the promisor as having refused to perform the contract. It is argued that the differentiated model is the better model, and also the preferred view of the common law.
      PubDate: 2018-03-01T00:00:00.000Z
      DOI: 10.1017/S0008197317000836
      Issue No: Vol. 77, No. 1 (2018)
    • Authors: Jennifer Payne
      Pages: 124 - 150
      Abstract: This paper examines the intervention of the law, and the role of the court, in debt restructuring, both in terms of imposing constraints on creditors and in seeking to ameliorate the potential abuses that can arise from such constraints. Three potential forms of abuse are examined: the imposition of a restructuring on dissenting creditors, which introduces the potential for wealth transfers between creditors; the imposition of a moratorium while a restructuring is negotiated, which might lead to misuse of the process by managers wishing to prop up companies which are not viable, or may allow managers of a viable business to “shake off” liabilities that it is capable of servicing; and the facilitation of rescue finance, which raises the potential for new creditors to be preferred at the expense of existing creditors. It is argued that the court's role in protecting creditors from these three forms of potential abuse is vital, although the nature of that role differs according to the form of abuse. Recent debt restructuring reform proposals in both the UK and the EU, which adopt distinct approaches to the role of the court in this process, are examined in the light of this discussion.
      PubDate: 2018-03-01T00:00:00.000Z
      DOI: 10.1017/S0008197318000016
      Issue No: Vol. 77, No. 1 (2018)
    • Authors: Andrew Tettenborn
      Pages: 151 - 178
      Abstract: The current law relating to the unauthorised dispositions of chattels is an arbitrary and unpredictable mess that has grown up haphazardly and piecemeal. In this connection we need a default rule that is straightforward rational and logical. Such a rule should follow three principles. First there should be a background rule of entrustment, whereby anyone entrusting another with goods takes the risk of subsequent misdealing. Secondly, this rule should apply to all proprietary interests and not simply to ownership. Thirdly, it should be open to exceptions where there is good reason to admit them, for example to accommodate specific schemes covering particular types of security interest.
      PubDate: 2018-03-01T00:00:00.000Z
      DOI: 10.1017/S0008197317000824
      Issue No: Vol. 77, No. 1 (2018)
    • Authors: Chris Willett
      Pages: 179 - 210
      Abstract: This article develops a new theoretical framework for understanding consumer contract law, one based on competing ethics of self-interest/reliance and need. It shows how this is a better way of understanding choices as to levels of protection than the traditional “freedom versus fairness” framework. The self-interest/reliance ethic favours rules allowing traders to use processes to escape responsibility for poor quality and harsh outcomes, while the need ethic is concerned with consumer weaknesses and better protects against such outcomes. The article also shows that need-based rules are usually more effective at improving clarity and certainty, and where such rules cause uncertainty, at least as much uncertainty is caused by the alternative self-interest/reliance-based rules.
      PubDate: 2018-03-01T00:00:00.000Z
      DOI: 10.1017/S0008197318000107
      Issue No: Vol. 77, No. 1 (2018)
  • Insurance+in+Elizabethan+England:+The+London+Code.+By+Guido+Rossi+.+[Cambridge+University+Press,+2016.+xv+++883+pp.+Hardback+£110.00.+ISBN+978-1-107-11228-5.]&rft.title=Cambridge+Law+Journal&rft.issn=0008-1973&">Insurance in Elizabethan England: The London Code. By Guido Rossi .
           [Cambridge University Press, 2016. xv + 883 pp. Hardback £110.00. ISBN
    • Authors: J.D. Heydon
      Pages: 211 - 212
      PubDate: 2018-03-01T00:00:00.000Z
      DOI: 10.1017/S0008197318000028
      Issue No: Vol. 77, No. 1 (2018)
  • Conflict+of+Laws+in+the+People's+Republic+of+China.+By+Zheng+Sophia+Tang+,+Yongping+Xiao++and+Zhengxin+Huo+.+[Cheltenham:+Elgar,+2016.+lvii+++448+pp.+Hardback+£145.00.+ISBN+978-1-84980-858-3.]&rft.title=Cambridge+Law+Journal&rft.issn=0008-1973&">Conflict of Laws in the People's Republic of China. By Zheng Sophia Tang ,
           Yongping Xiao and Zhengxin Huo . [Cheltenham: Elgar, 2016. lvii + 448 pp.
           Hardback £145.00. ISBN 978-1-84980-858-3.]
    • Authors: T.M. Yeo
      Pages: 212 - 215
      PubDate: 2018-03-01T00:00:00.000Z
      DOI: 10.1017/S0008197318000089
      Issue No: Vol. 77, No. 1 (2018)
  • The+Codes+of+the+Constitution.+By+Andrew+Blick+.+[Oxford:+Hart+Publishing,+2016.+xi+++260+pp.+Hardback+£59.99.+ISBN+978-1-84946-681-3.]&rft.title=Cambridge+Law+Journal&rft.issn=0008-1973&">The Codes of the Constitution. By Andrew Blick . [Oxford: Hart Publishing,
           2016. xi + 260 pp. Hardback £59.99. ISBN 978-1-84946-681-3.]
    • Authors: Graham Gee
      Pages: 215 - 218
      PubDate: 2018-03-01T00:00:00.000Z
      DOI: 10.1017/S000819731800003X
      Issue No: Vol. 77, No. 1 (2018)
  • Masculinity+and+the+Trials+of+Modern+Fiction.+By+Marco+Wan++[Abingdon:+Routledge,+2017.+177+pp.+Hardback+£110.00.+ISBN+978-1-13-868419-5.]&rft.title=Cambridge+Law+Journal&rft.issn=0008-1973&">Masculinity and the Trials of Modern Fiction. By Marco Wan [Abingdon:
           Routledge, 2017. 177 pp. Hardback £110.00. ISBN 978-1-13-868419-5.]
    • Authors: Ian Ward
      Pages: 218 - 220
      PubDate: 2018-03-01T00:00:00.000Z
      DOI: 10.1017/S0008197317000812
      Issue No: Vol. 77, No. 1 (2018)
  • Law+in+Theory+and+History:+New+Essays+on+a+Neglected+Dialogue.+Edited+by+Maksymilian+Del+Mar++and+Michael+Lobban+.+[Oxford:+Hart+Publishing,+2016.+xiv+++347+pp.+Hardback+£79.99.+ISBN+978-1-50990-386-3.]&rft.title=Cambridge+Law+Journal&rft.issn=0008-1973&">Law in Theory and History: New Essays on a Neglected Dialogue. Edited by
           Maksymilian Del Mar and Michael Lobban . [Oxford: Hart Publishing, 2016.
           xiv + 347 pp. Hardback £79.99. ISBN 978-1-50990-386-3.]
    • Authors: Tim Rogan
      Pages: 220 - 223
      PubDate: 2018-03-01T00:00:00.000Z
      DOI: 10.1017/S0008197318000090
      Issue No: Vol. 77, No. 1 (2018)
  • Plato's+Pragmatic+Project:+A+Reading+of+Plato's+Laws ++++++++++++.+By+Myrthe+L.+Bartels+.+[Stuttgart:+Franz+Steiner+Verlag,+2017.+251+pp.+Softcover+€49.00.+ISBN+978-3-515-11800-2.]&rft.title=Cambridge+Law+Journal&rft.issn=0008-1973&">Plato's Pragmatic Project: A Reading of Plato's Laws . By Myrthe L.
           Bartels . [Stuttgart: Franz Steiner Verlag, 2017. 251 pp. Softcover
           €49.00. ISBN 978-3-515-11800-2.]
    • Authors: Jacob Eisler
      Pages: 223 - 227
      PubDate: 2018-03-01T00:00:00.000Z
      DOI: 10.1017/S0008197318000041
      Issue No: Vol. 77, No. 1 (2018)
  • Provisional+Measures+before+International+Courts+and+Tribunals.+By+Cameron+Miles+.+[Cambridge+University+Press,+2017.+lxiii+++517+pp.+Hardback+£95.00.+ISBN+978-1-107-12550-9.]&rft.title=Cambridge+Law+Journal&rft.issn=0008-1973&">Provisional Measures before International Courts and Tribunals. By Cameron
           Miles . [Cambridge University Press, 2017. lxiii + 517 pp. Hardback
           £95.00. ISBN 978-1-107-12550-9.]
    • Authors: Massimo Lando
      Pages: 227 - 230
      PubDate: 2018-03-01T00:00:00.000Z
      DOI: 10.1017/S0008197318000077
      Issue No: Vol. 77, No. 1 (2018)
  • One+Another's+Equals:+The+Basis+of+Human+Equality.+By+Jeremy+Waldron++[Cambridge,+MA:+The+Belknap+Press+of+Harvard+University+Press,+2017.+280+pp.+Hardback+£23.95.+ISBN+978-0-67-465976-6.]&rft.title=Cambridge+Law+Journal&rft.issn=0008-1973&">One Another's Equals: The Basis of Human Equality. By Jeremy Waldron
           [Cambridge, MA: The Belknap Press of Harvard University Press, 2017. 280
           pp. Hardback £23.95. ISBN 978-0-67-465976-6.]
    • Authors: Raffael N. Fasel
      Pages: 230 - 233
      PubDate: 2018-03-01T00:00:00.000Z
      DOI: 10.1017/S0008197317000800
      Issue No: Vol. 77, No. 1 (2018)
    • Pages: 234 - 235
      PubDate: 2018-03-01T00:00:00.000Z
      DOI: 10.1017/S0008197318000119
      Issue No: Vol. 77, No. 1 (2018)
School of Mathematical and Computer Sciences
Heriot-Watt University
Edinburgh, EH14 4AS, UK
Tel: +00 44 (0)131 4513762
Fax: +00 44 (0)131 4513327
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