Abstract Judicial 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.
{"title":"A Short History of Judicial Diversity","authors":"Erika Rackley","doi":"10.1093/clp/cuad007","DOIUrl":"https://doi.org/10.1093/clp/cuad007","url":null,"abstract":"Abstract Judicial 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.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":"43 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135652383","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Almost 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.
Briggs J在Calvert v William Hill Credit Ltd（2008）一案中认为，“承认保护问题赌徒免受自我认定的赌博损失的普通法义务涉及到疏忽侵权行为的最外层，达到真正例外的领域”，这句话的法律和技术背景就彻底改变了。卡尔弗特事件发生时，2005年《赌博法》的自由化制度还没有生效，而随着高度成瘾的在线赌博平台、智能手机、复杂的定向营销和无处不在的广告的出现，该法案在实施时已经过时。如今，赌博障碍是一种日益严重的、毁灭性的精神障碍，也是一个重大的公共卫生问题，太多的患者因此自杀，而赌博经营者严重违反了旨在保护弱势客户的许可条件和行为准则。这篇文章考虑了普通法应该如何回应，得出的结论是，赌博障碍不应该再处于过失侵权的“最外层”。
{"title":"Gambling Disorder, Financial Loss and Suicide—A Journey to the ‘Outer Reaches’ of the Common Law","authors":"J. O’sullivan","doi":"10.1093/clp/cuad006","DOIUrl":"https://doi.org/10.1093/clp/cuad006","url":null,"abstract":"\u0000 Almost 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.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-07-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44477554","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
How 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.
{"title":"‘Not Time to Make a Change’? Reviewing the Rhetoric of Law Reform","authors":"James Lee","doi":"10.1093/clp/cuad004","DOIUrl":"https://doi.org/10.1093/clp/cuad004","url":null,"abstract":"\u0000 How 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.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-06-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49024225","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This 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.
{"title":"Existential Ethics: Thinking Hard About Lawyer Responsibility for Clients’ Environmental Harms","authors":"S. Vaughan","doi":"10.1093/clp/cuad005","DOIUrl":"https://doi.org/10.1093/clp/cuad005","url":null,"abstract":"\u0000 This 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.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-06-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44569780","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Privatisation 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.
{"title":"The Privatisation of Private (and) International Law","authors":"A. Mills","doi":"10.1093/clp/cuad003","DOIUrl":"https://doi.org/10.1093/clp/cuad003","url":null,"abstract":"\u0000 Privatisation 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.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":"1 1","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41939219","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This 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.
{"title":"The Thinkery and the Academy: Examining the Legal Parameters and Interactions of Academic Freedom and Freedom of Expression Under English Law","authors":"J. Murray","doi":"10.1093/clp/cuad002","DOIUrl":"https://doi.org/10.1093/clp/cuad002","url":null,"abstract":"\u0000 This 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.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-02-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44034330","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This 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.
本文考察了在法律学术和判例法中取得一定进展的一种观点，即对权利的侵犯本身应当构成实质性(补偿性)损害，而独立于对索赔人造成的任何事实损失。这一“规范性损害赔偿”原则在2020年Lewis v. ACT的错误监禁案中被澳大利亚高等法院正确地拒绝了。然而，尽管一致反对，但规范性损害赔偿问题与因果反事实和非法监禁定义的考虑交织在一起，这一事实削弱了其明确性。本文将从更广阔的角度来考虑这一理论，考察其来源，并论证规范性损害赔偿在原则上是错误的:它们不仅与英美联邦损害赔偿法的基本原则相矛盾，而且实际上相当于对同一损害考虑两次。
{"title":"Against Normative Damages","authors":"E. Descheemaeker","doi":"10.1093/clp/cuad001","DOIUrl":"https://doi.org/10.1093/clp/cuad001","url":null,"abstract":"This 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.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-02-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48118725","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The David Miller case raises the question, does liberal free speech doctrine require academics to defend the antisemitic conspiracy-talk of a sociology professor? The article opens with a discussion of Louise Glück's poem ‘A Myth of Innocence’, and then proceeds towards an answer to this question, pausing to address details of the Miller case itself when the general argument requires it to do so.
{"title":"Willed Ignorance: Reflections on academic free speech, occasioned by the David Miller case","authors":"A. Julius","doi":"10.1093/clp/cuac001","DOIUrl":"https://doi.org/10.1093/clp/cuac001","url":null,"abstract":"\u0000 The David Miller case raises the question, does liberal free speech doctrine require academics to defend the antisemitic conspiracy-talk of a sociology professor? The article opens with a discussion of Louise Glück's poem ‘A Myth of Innocence’, and then proceeds towards an answer to this question, pausing to address details of the Miller case itself when the general argument requires it to do so.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":"1 1","pages":""},"PeriodicalIF":1.2,"publicationDate":"2022-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44475605","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Human Rights of Children","authors":"M. Freeman","doi":"10.1093/CLP/63.1.1","DOIUrl":"https://doi.org/10.1093/CLP/63.1.1","url":null,"abstract":"","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":"63 1","pages":"1-44"},"PeriodicalIF":1.2,"publicationDate":"2022-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CLP/63.1.1","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43604555","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Corrigendum to: Group Companies and Climate Justice","authors":"L. Benjamin","doi":"10.1093/clp/cuab015","DOIUrl":"https://doi.org/10.1093/clp/cuab015","url":null,"abstract":"","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2021-12-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49492653","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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