Hybrid journal (It can contain Open Access articles) ISSN (Print) 0070-1998 - ISSN (Online) 2044-8422 Published by Oxford University Press[425 journals]
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Pages: 1 - 34 Abstract: AbstractThis paper challenges the conventional understanding among many legal ethicists that environmental harm can be a necessary, if regrettable, collateral effect of lawyerly work. It argues that lawyers sometimes do things that cost society too much and that legal ethics (being the rules of ethical conduct set out by regulators of lawyers and broader theories of ‘good’ lawyering) has the potential to act as a mediator on lawyers’ environmental harm-causing action. The paper begins by examining lawyers’ formal rules of professional conduct in England & Wales, showing how those rules require lawyers to provide active counselling to clients but do not fully address clients’ legally permissible choices that may result in environmental harm. The paper then turns to theories of legal ethics that go beyond these baseline rules. Here, I argue that the dominant ‘Standard Conception’ of lawyers as neutral technicians is not only implausible in the context of environmental law but also fundamentally incomplete. The paper also considers the ethical implications of a lawyer’s initial decision to represent a client. The commonly held belief that ‘Everyone deserves legal advice’ often masks a simple ethical choice, where lawyers prioritise commercial concerns over environmental considerations, unburdened by more complex ethical constraints. However, this rationalisation rests on unsound premises and frequently clashes with lawyers’ personal moral boundaries; a problem I label ‘Meatloaf Lawyering’. Ultimately, I argue that lawyers have significant ethical agency and that their professional obligations do not impede (and sometimes require) an active, ethically responsible stance towards environmental harms. PubDate: Fri, 02 Jun 2023 00:00:00 GMT DOI: 10.1093/clp/cuad005 Issue No:Vol. 76, No. 1 (2023)
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Pages: 35 - 74 Abstract: AbstractThis paper examines an idea which has made some headway into legal scholarship and case law, namely, that the violation of a right ought to sound in substantial (compensatory) damages in and by itself, independently of any factual loss caused to the claimant. This doctrine of ‘normative damages’ was rejected, rightly, by the High Court of Australia in the wrongful imprisonment case of Lewis v. ACT in 2020. However, although the rejection was unanimous, its clarity was undermined by the fact that the issue of normative damages was intertwined with considerations of causal counterfactuals and the definition of false imprisonment. This article considers the doctrine in a broader perspective, examining where it has come from and arguing that normative damages are wrong as a matter of principle: not only do they contradict foundational principles of the Anglo-Commonwealth law of damages, they effectively amount to considering the same injury twice. PubDate: Thu, 16 Feb 2023 00:00:00 GMT DOI: 10.1093/clp/cuad001 Issue No:Vol. 76, No. 1 (2023)
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Pages: 75 - 128 Abstract: AbstractPrivatisation is much studied and debated as a general phenomenon, including in relation to its legal effects and the challenges it presents to the boundaries of public and private law. Outside the criminal context there has however been relatively limited focus on privatisation of the governmental functions which are perhaps of most interest to lawyers—law making, law enforcement and dispute resolution—or on the international legal implications of privatisation. This article argues that modern legal developments in the context of private law and cross-border private legal relations—generally known as party autonomy in private international law—can be usefully analysed as two distinct forms of privatisation. First, privatisation of certain allocative functions of public and private international law, in respect of both institutional and substantive aspects of private law regulation, through the legal effect given to choice of court and choice of law agreements. Second, privatisation of the institutional and substantive regulation of private legal relationships themselves, through arbitration and the recognition of non-state law. Together, these developments have established a global marketplace of state and non-state dispute resolution institutions and private laws, which detaches private law authority from its traditional jurisdictional anchors. Analysing these developments through the lens of privatisation highlights a number of important critical questions which deserve greater consideration—this article further examines in particular whether this form of privatisation in fact increases efficiency in either private international law decision-making or private law dispute resolution, as well as its distributive and regulatory effects. PubDate: Wed, 22 Mar 2023 00:00:00 GMT DOI: 10.1093/clp/cuad003 Issue No:Vol. 76, No. 1 (2023)
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Pages: 129 - 172 Abstract: AbstractHow do we talk about changing the law' This article considers the rhetoric of law reform and what it can tell us about the current relationships between key institutions involved in the relevant processes. A key claim is that the rhetoric deployed in formulating proposals can complicate the fate of law reform projects as they develop. Several examples from private and criminal law are used to support the argument, with assessment of the interaction of time and legal development. The language of ‘modernisation’—a noticeable theme in contemporary proposals from the Law Commission of England and Wales—is scrutinised. The Commission’s statutory functions expressly include ‘the repeal of obsolete and unnecessary enactments… and generally the simplification and modernisation of the law’, but what ‘modernisation’ means in this area has, so far, been under-examined. The author then goes on to identify attitudinal and structural tensions in the current relationship between the Law Commission and Government. Constructive suggestions are offered for reforming our law reform practices. The way in which we talk about law reform can be understood as both a cause and symptom of some of the problems in developing the law today. PubDate: Mon, 05 Jun 2023 00:00:00 GMT DOI: 10.1093/clp/cuad004 Issue No:Vol. 76, No. 1 (2023)
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Pages: 173 - 200 Abstract: AbstractAlmost as soon as Briggs J opined in Calvert v William Hill Credit Ltd (2008) that ‘recognition of a common law duty to protect a problem gambler from self-inflicted gambling losses involves a journey to the outermost reaches of the tort of negligence, to the realm of the truly exceptional’, the legal and technological context of his dictum utterly transformed. The liberalising regime of the Gambling Act 2005 was not in force when the facts of Calvert occurred, and the legislation was itself out of date by the time it was implemented, with the arrival of highly addictive online gambling platforms, smartphones, sophisticated targeted marketing and ubiquitous advertising. Today, gambling disorder is a growing, devastating psychiatric disorder and a major public health problem, with far too many sufferers taking their own lives as a result, while gambling operators commit egregious breaches of licensing conditions and codes of practice intended to protect vulnerable customers. This article considers how the common law should respond, concluding that gambling disorder should no longer languish at the ‘outermost reaches’ of the tort of negligence. PubDate: Sat, 22 Jul 2023 00:00:00 GMT DOI: 10.1093/clp/cuad006 Issue No:Vol. 76, No. 1 (2023)
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Pages: 201 - 264 Abstract: AbstractToday’s consumers use a range of cues to identify product origin, including brand names, logos, colours and shapes. The range of registrable marks has therefore expanded, but this brings a risk that features which others have a legitimate competitive need to use will fall under the exclusive control of a single undertaking. Registration may also be used to extend the finite duration of other IP rights that the owner has already enjoyed. Consequently, trade mark law contains functionality limitations on registration designed to protect these competitive concerns. This piece considers how well those limitations are working. The CJEU has also seemed to apply stricter distinctiveness rules to shape marks based on the assumption that consumers are not used to seeing shapes as origin indicators. Some have assumed this means that it is almost impossible to register shape marks—this research examines whether this is really so. How functionality and distinctiveness work in practice is examined through an empirical analysis over a 5-year period of all shape mark applications to the European Union Intellectual Property Office. This piece considers which types of marks are being registered, which are being refused and why. It reveals that distinctiveness, rather than functionality, is having the biggest impact on shape mark registration, and in fact a larger number of shape marks than expected are registered: often because of the addition of non-3D matter. However, are a significant number of marks comprised just of product shapes. It concludes with a discussion of competitive and policy challenges identified by this research. PubDate: Fri, 06 Oct 2023 00:00:00 GMT DOI: 10.1093/clp/cuad008 Issue No:Vol. 76, No. 1 (2023)
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Pages: 265 - 296 Abstract: AbstractJudicial diversity is a priority without priority. While few would argue, openly at least, against a more diverse judiciary in principle, there is still some way to go to make it a reality. And yet, despite the slow rate of progress, reigniting conversations about diversity may seem unwise in the current political moment, raising the question of whether those seeking to achieve a truly diverse judiciary have anywhere (new) to go. We seem to have reached an impasse. This article brings the insights of feminist legal history to bear on arguments for judicial diversity. Drawing on original archival research, it focuses on the establishment of the Industrial Court in 1919 and tells, for the first time, how there came to be statutory requirement for women’s presence on the court. It argues that the quality argument for diversity—that a court is stronger and its decision-making better for the inclusion of women among its members—was central to this success. It goes on to argue that in unsettling deep-seat assumptions particularly around arguments for the imposition of quotas, the history of the Industrial Court, and feminist legal history more generally, offers a way out of the impasse and a reason to keep talking about judicial diversity. This is important. For it is only by doing so that we have any chance of securing a judiciary that is truly diverse. PubDate: Wed, 09 Aug 2023 00:00:00 GMT DOI: 10.1093/clp/cuad007 Issue No:Vol. 76, No. 1 (2023)
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Pages: 297 - 344 Abstract: AbstractData protection law is often invoked as the first line of defence against data-related interferences with fundamental rights. As societal activity has increasingly taken on a digital component, the scope of application of the law has expanded. Data protection has been labelled ‘the law of everything’. While this expansion of material scope to absorb the impact of socio-technical changes on human rights appears justified, less critical attention has been paid to the questions of to whom the law should apply and in what circumstances. The Court of Justice has justified an expansive interpretation of the personal scope of the law in order to ensure ‘effective and complete’ data protection for individuals. This article argues that the attempt to make the protection offered by the law more ‘complete’ risks jeopardising its practical effectiveness and raises doubts about the soundness of the regulatory approach to data protection. In the quest for effective and complete protection, it seems that something must give. PubDate: Tue, 10 Oct 2023 00:00:00 GMT DOI: 10.1093/clp/cuad009 Issue No:Vol. 76, No. 1 (2023)
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Pages: 345 - 374 Abstract: AbstractThis paper examines how the right to free expression and academic freedom interact under English and international law, discusses how those two rights have traditionally been thought to interact, and considers how they can be brought together with the concept of academic free expression. In doing so, the article examines the legal parameters and key characteristics of academic free expression, namely: what is the protection afforded to it; what are its ‘qualifying criteria’; what are its limits and how might the protection afforded to it be lost; and, where might such protection not be lost as compared to the general right to free expression. To end, the article discusses why this all matters with reference to recent high-profile disputes over academic freedom, and examines how these issues interact with other UK laws, in particular, the upcoming Higher Education (Freedom of Speech) Bill. PubDate: Fri, 24 Feb 2023 00:00:00 GMT DOI: 10.1093/clp/cuad002 Issue No:Vol. 76, No. 1 (2023)
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Pages: 375 - 402 Abstract: AbstractCountries in the Global South have adopted competition laws and pursued competition policies very similar to countries in the North. This arrangement can be traced to various coercive powers at play—from trading partners in the North, international organizations to development banks, among others. As a result, the adopted laws are often unsuitable to the local needs of the countries in the South and their enforcement policies are often shaped by global pressure. This has alienated countries in the Global South from pursuing competition enforcement policies that could be empowering to their firms, consumers and communities at large. One way to resist and challenge these coercive powers is to pursue alternative competition policies, not alien to the Western nations themselves. In these alternative configurations, competition laws are squared with goals of industrialization and distributive equality. Pursuing these alternative competition goals challenges the dominance of the static model of competition policy aiming to achieve allocative efficiency. Examples from many places around the world are illustrated to show how competition policy, at crucial times of their development, were broadened to encompass an industrial agenda. The latter, more suitable for countries in the South, is discussed as a means of counter-coercion. It is discussed alongside an elaborate program for distribution to assure that the benefits of industrialization do not befall upon only a few. The aim of such a distributive program, built into competition enforcement, is to bring social justice concerns within the purview of competition policy. PubDate: Sat, 04 Nov 2023 00:00:00 GMT DOI: 10.1093/clp/cuad011 Issue No:Vol. 76, No. 1 (2023)
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Pages: 403 - 447 Abstract: AbstractIt seems to be assumed by some that ‘crime is easy’. Not the commission of it, nor the securing of ill-gotten gains from it, but the study, practice, and judging of it. In this paper, I challenge what might be a significant consequence of such an assumption—the systemic impacts on the appointment and deployment of High Court judges and the structure of the High Court. I argue that criminal judging at both first instance and on appeal is distinctive and demands a cadre of expert judges. I explore two core criminal roles performed by High Court Judges—one as a first-instance trial judge trying the most serious offence of murder, and the other sitting in an appellate capacity reviewing applications for leave to appeal from the Crown Court. This leads me to conclude that the current system of recruitment to the King’s Bench Division (KBD) of the High Court fails to guarantee that all KBD judges who sit in crime have the ideal level of expertise in criminal judging to equip them for that role. In turn, this prompts consideration of a range of solutions including, most radically, a proposal for the creation of a Criminal Division of the High Court, and the benefits that might offer. PubDate: Tue, 10 Oct 2023 00:00:00 GMT DOI: 10.1093/clp/cuad010 Issue No:Vol. 76, No. 1 (2023)
Hybrid journal (It can contain Open Access articles)
[425 journals]
