It is often said that the courts will not save parties from bad bargains: as Lord Nottingham observed, even ‘the Chancery mends no man's bargain’. This article considers what is meant by ‘bad bargain’, and argues that courts should be reluctant to develop the law in a way which would allow sophisticated commercial actors to escape bad bargains. This analysis is timely since in the current economic climate a number of long-term contracts have become especially disadvantageous to one party, and one consequence of Brexit is likely to be an increase in instances where one party tries to escape a bad bargain. Sympathy for the party which finds itself subject to a bad bargain has led to pressure on courts to find that an agreement is not binding; to expand the scope of the vitiating factors; and to liberalise the principles of interpretation and rectification, for example. It is suggested that courts should not readily bow to such pressure.
{"title":"Bad Bargains","authors":"P. Davies","doi":"10.1093/clp/cuz008","DOIUrl":"https://doi.org/10.1093/clp/cuz008","url":null,"abstract":"\u0000 It is often said that the courts will not save parties from bad bargains: as Lord Nottingham observed, even ‘the Chancery mends no man's bargain’. This article considers what is meant by ‘bad bargain’, and argues that courts should be reluctant to develop the law in a way which would allow sophisticated commercial actors to escape bad bargains. This analysis is timely since in the current economic climate a number of long-term contracts have become especially disadvantageous to one party, and one consequence of Brexit is likely to be an increase in instances where one party tries to escape a bad bargain. Sympathy for the party which finds itself subject to a bad bargain has led to pressure on courts to find that an agreement is not binding; to expand the scope of the vitiating factors; and to liberalise the principles of interpretation and rectification, for example. It is suggested that courts should not readily bow to such pressure.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2019-10-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/clp/cuz008","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44332549","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 article assesses the United Kingdom’s rapidly evolving territorial constitution through the register of federal theory. While not arguing that the UK is federal or ought to be described as federal, the article contends that federalism is a useful prism through which to assess how well the UK’s constitution accommodates autonomy on the one hand and the efficacy of union, which is the essential complement of pluralism, on the other. It then proceeds to assess the Brexit process in light of existing imbalances in the UK’s territorial arrangements. The way in which Parliament has paved the way for the United Kingdom’s withdrawal from the EU is widely considered to be deeply unpropitious for devolution. However, upon further analysis of the legal changes and internal political commitments that have been designed to facilitate Brexit, it would appear that a more balanced set of constitutional arrangements may be emerging which could in fact bolster and further embed the United Kingdom’s territorial constitutional commitments.
{"title":"The Territorial Constitution and the Brexit Process","authors":"S. Tierney","doi":"10.1093/clp/cuz007","DOIUrl":"https://doi.org/10.1093/clp/cuz007","url":null,"abstract":"\u0000 This article assesses the United Kingdom’s rapidly evolving territorial constitution through the register of federal theory. While not arguing that the UK is federal or ought to be described as federal, the article contends that federalism is a useful prism through which to assess how well the UK’s constitution accommodates autonomy on the one hand and the efficacy of union, which is the essential complement of pluralism, on the other. It then proceeds to assess the Brexit process in light of existing imbalances in the UK’s territorial arrangements. The way in which Parliament has paved the way for the United Kingdom’s withdrawal from the EU is widely considered to be deeply unpropitious for devolution. However, upon further analysis of the legal changes and internal political commitments that have been designed to facilitate Brexit, it would appear that a more balanced set of constitutional arrangements may be emerging which could in fact bolster and further embed the United Kingdom’s territorial constitutional commitments.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2019-10-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/clp/cuz007","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46609264","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}
Although the assumption of responsibility concept pervades the English law of negligence, its meaning remains hazy and its significance contested. While the courts employ the language of assumption of responsibility on a regular basis, no clear judicial definition of it has emerged. And commentators are divided as to whether assumption of responsibility is a distinct ground on which liability is imposed, or merely a foil for policy arguments – or for another, more general, test for the recognition of duties of care. Matters are complicated by the fact that assumption of responsibility does not fit neatly within the orthodox categories of ‘tort’ and ‘contract’, but hovers uncertainly between the two. The aim of this article is to try to bring some clarity to the controversies surrounding assumption of responsibility. Four questions frame the analysis. What does assumption of responsibility mean? When does it matter? Why do we need it? And where does it belong? Although the answers to some of these questions are necessarily tentative, at least one conclusion should become clear, namely that assumption of responsibility is a meaningful and distinctive basis on which to impose negligence liability.
{"title":"Assumption of Responsibility: Four Questions","authors":"D. Nolan","doi":"10.1093/CLP/CUZ002","DOIUrl":"https://doi.org/10.1093/CLP/CUZ002","url":null,"abstract":"\u0000 Although the assumption of responsibility concept pervades the English law of negligence, its meaning remains hazy and its significance contested. While the courts employ the language of assumption of responsibility on a regular basis, no clear judicial definition of it has emerged. And commentators are divided as to whether assumption of responsibility is a distinct ground on which liability is imposed, or merely a foil for policy arguments – or for another, more general, test for the recognition of duties of care. Matters are complicated by the fact that assumption of responsibility does not fit neatly within the orthodox categories of ‘tort’ and ‘contract’, but hovers uncertainly between the two. The aim of this article is to try to bring some clarity to the controversies surrounding assumption of responsibility. Four questions frame the analysis. What does assumption of responsibility mean? When does it matter? Why do we need it? And where does it belong? Although the answers to some of these questions are necessarily tentative, at least one conclusion should become clear, namely that assumption of responsibility is a meaningful and distinctive basis on which to impose negligence liability.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2019-07-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CLP/CUZ002","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41947180","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}
Access to justice research over two decades has documented the health-harming effects of unmet legal needs. There is growing evidence of bidirectional links between law and health demonstrating that social and economic problems with a legal dimension can exacerbate or create ill health and, conversely that ill-health can create legal problems. Independently, social epidemiological research documents gross and widening inequalities in health, largely explained by social determinants such as income, housing, employment, and education. Although legal issues are embedded in most social determinants of health, law has been largely invisible in social determinants discourse, research and interventions. This article argues that legal services have an important role to play in mitigating many of the socio-economic determinants that disproportionately impact the health of low income and vulnerable groups. It describes the international practitioner-led movement of Health Justice Partnership through which lawyers work with healthcare teams to address the root causes of ill health rather than focusing on physical and psychological manifestations of negative social determinants. Finally, the article attempts to delineate the evolving field of health justice, advancing a transdisciplinary research agenda that could strengthen both public health and access to justice research by moving beyond the limitations of single discipline approaches. Noting the vigorous policy emphasis in law and health on prevention and partnership to address the twin challenges of access to justice and health inequalities, the article ends with a plea for policy coordination that acknowledges shared responsibility across government for improving the health of the public.
{"title":"When Law is Good for Your Health: Mitigating the Social Determinants of Health through Access to Justice","authors":"H. Genn","doi":"10.1093/clp/cuz003","DOIUrl":"https://doi.org/10.1093/clp/cuz003","url":null,"abstract":"\u0000 Access to justice research over two decades has documented the health-harming effects of unmet legal needs. There is growing evidence of bidirectional links between law and health demonstrating that social and economic problems with a legal dimension can exacerbate or create ill health and, conversely that ill-health can create legal problems. Independently, social epidemiological research documents gross and widening inequalities in health, largely explained by social determinants such as income, housing, employment, and education. Although legal issues are embedded in most social determinants of health, law has been largely invisible in social determinants discourse, research and interventions. This article argues that legal services have an important role to play in mitigating many of the socio-economic determinants that disproportionately impact the health of low income and vulnerable groups. It describes the international practitioner-led movement of Health Justice Partnership through which lawyers work with healthcare teams to address the root causes of ill health rather than focusing on physical and psychological manifestations of negative social determinants. Finally, the article attempts to delineate the evolving field of health justice, advancing a transdisciplinary research agenda that could strengthen both public health and access to justice research by moving beyond the limitations of single discipline approaches. Noting the vigorous policy emphasis in law and health on prevention and partnership to address the twin challenges of access to justice and health inequalities, the article ends with a plea for policy coordination that acknowledges shared responsibility across government for improving the health of the public.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2019-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/clp/cuz003","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49501191","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}
We live our lives in an often-unseen transnational counter-terrorism order. For almost two decades now, counter-terrorist hegemons have been acting on multiple transnational levels, using a mixture of legal, institutional, technical and political manoeuvres to develop laws, policies and practices of counter-terrorism that undervalue rights, exclude civil society, limit dissent and disagreement, and expand greatly the reach of national and transnational security. The assemblage of laws, institutions, forums, processes, bureaucracies, and cooperative networks that have emerged from these machinations should be understood as a transnational counter-terrorism order that is intended to instantiate on a global level ‘an arrangement of social life…[that]…promotes certain goals or values’ (Bull), whether or not they conflict with rights, whether or not they emerge from legitimate and participatory processes. This paper brings together various seemingly-technical or esoteric strands of law, institutions, policy and politics to show their connections, interdependencies and interactions and, thereby, to illustrate the emergence of this transnational counter-terrorism order. It argues that unless we recognise the connections between and multi-scalar implications of the seemingly disparate, sometimes opaque, and often bureaucratic elements that make up the transnational counter-terrorism order, its scale and implications will remain hidden in plain sight and we may find ourselves unable effectively to insist on fidelity to the constitutionalist values of rights, accountability, and democratic legitimacy.
{"title":"The Transnational Counter-Terrorism Order: A Problématique","authors":"Fiona de Londras","doi":"10.1093/clp/cuz005","DOIUrl":"https://doi.org/10.1093/clp/cuz005","url":null,"abstract":"We live our lives in an often-unseen transnational counter-terrorism order. For almost two decades now, counter-terrorist hegemons have been acting on multiple transnational levels, using a mixture of legal, institutional, technical and political manoeuvres to develop laws, policies and practices of counter-terrorism that undervalue rights, exclude civil society, limit dissent and disagreement, and expand greatly the reach of national and transnational security. The assemblage of laws, institutions, forums, processes, bureaucracies, and cooperative networks that have emerged from these machinations should be understood as a transnational counter-terrorism order that is intended to instantiate on a global level ‘an arrangement of social life…[that]…promotes certain goals or values’ (Bull), whether or not they conflict with rights, whether or not they emerge from legitimate and participatory processes. This paper brings together various seemingly-technical or esoteric strands of law, institutions, policy and politics to show their connections, interdependencies and interactions and, thereby, to illustrate the emergence of this transnational counter-terrorism order. It argues that unless we recognise the connections between and multi-scalar implications of the seemingly disparate, sometimes opaque, and often bureaucratic elements that make up the transnational counter-terrorism order, its scale and implications will remain hidden in plain sight and we may find ourselves unable effectively to insist on fidelity to the constitutionalist values of rights, accountability, and democratic legitimacy.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/clp/cuz005","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60877907","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 twenty years since the adoption of the Palermo Protocol on Trafficking, anti-trafficking law and discourse continue to be in a state of tremendous flux and dynamic evolution. While the efficacy of using criminal law to tackle an irreducibly socioeconomic problem of labour exploitation was always suspect, scholars and activists alike sought to remedy the excesses of a criminal justice approach by articulating a human rights approach to trafficking. Arguing that this did not go far enough, labour law scholars called for a labour approach to trafficking in order to forefront the role that a redistributive mechanism like labour law could perform in supporting the agency of workers to counter vulnerability to trafficking. Since then, trafficking has evolved into a development issue with the articulation of Sustainable Development Goal 8.7 around which international organisations have mobilised considerable resources. Influential actors believe that bringing development to countries of the Global South will help them eliminate 'modern slavery'. My paper instead builds on the critique of the developmental project to elaborate on the key elements of a development approach to trafficking, one which is rooted in the realities of the developing world and which recognizes the fundamentally different configurations of the state, market, civil society and legal system in the Global South. Using the example of India, I argue that conventional regulatory responses to 'trafficking' and 'modern slavery' must be fundamentally rethought and that an uncritical reliance on a criminal law approach to trafficking must be replaced by efforts to implement domestic labour and social welfare laws which are themselves the result of long-term struggles for decent work and against extreme exploitation.
{"title":"Trafficking: A Development Approach","authors":"Prabha Kotiswaran","doi":"10.1093/clp/cuz012","DOIUrl":"https://doi.org/10.1093/clp/cuz012","url":null,"abstract":"Almost twenty years since the adoption of the Palermo Protocol on Trafficking, anti-trafficking law and discourse continue to be in a state of tremendous flux and dynamic evolution. While the efficacy of using criminal law to tackle an irreducibly socioeconomic problem of labour exploitation was always suspect, scholars and activists alike sought to remedy the excesses of a criminal justice approach by articulating a human rights approach to trafficking. Arguing that this did not go far enough, labour law scholars called for a labour approach to trafficking in order to forefront the role that a redistributive mechanism like labour law could perform in supporting the agency of workers to counter vulnerability to trafficking. Since then, trafficking has evolved into a development issue with the articulation of Sustainable Development Goal 8.7 around which international organisations have mobilised considerable resources. Influential actors believe that bringing development to countries of the Global South will help them eliminate 'modern slavery'. My paper instead builds on the critique of the developmental project to elaborate on the key elements of a development approach to trafficking, one which is rooted in the realities of the developing world and which recognizes the fundamentally different configurations of the state, market, civil society and legal system in the Global South. Using the example of India, I argue that conventional regulatory responses to 'trafficking' and 'modern slavery' must be fundamentally rethought and that an uncritical reliance on a criminal law approach to trafficking must be replaced by efforts to implement domestic labour and social welfare laws which are themselves the result of long-term struggles for decent work and against extreme exploitation.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138536781","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 Rule of—and not by any—Law. On Constitutionalism","authors":"S. Baer","doi":"10.1093/CLP/CUY010","DOIUrl":"https://doi.org/10.1093/CLP/CUY010","url":null,"abstract":"","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2018-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CLP/CUY010","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41281925","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}
In a world marked by financial instability, limited growth, rising inequality, deteriorating environment, growing corporate consolidation, and political turmoil, calls are made to shift the dominant competition law paradigm towards new directions. These may bring competition law beyond its usual comfort zone of assessing business, or government, practices from the point of view of their effect on prices, output and, more broadly, on consumer welfare.Competition law is seen as a tool to be used in various circumstances in order to ‘correct’ market as well as non-market (e.g. government) failures, that result from restrictions of competition, to the extent that these affect social welfare. These failures may relate to the protection of personal data and privacy, the protection of the environment, the promotion of social mobility, the harnessing of disruptive innovation, or the mitigation of technology risks. Some go even further and argue that competition law may well be employed in order to preserve a number of other ‘values’ of social justice, thought to be intrinsic in democratic capitalism and the liberal order, and to which competition law should be sensitive.By putting forward the model of ‘polycentric competition law’ and by explaining how this compares with the mainstream ‘monocentric’ vision that has prevailed so far, the study aims to unveil and portray the rites of passage in this transition, and to explore the liminal condition of modern competition law.
{"title":"Polycentric Competition Law","authors":"I. Lianos","doi":"10.1093/CLP/CUY008","DOIUrl":"https://doi.org/10.1093/CLP/CUY008","url":null,"abstract":"In a world marked by financial instability, limited growth, rising inequality, deteriorating environment, growing corporate consolidation, and political turmoil, calls are made to shift the dominant competition law paradigm towards new directions. These may bring competition law beyond its usual comfort zone of assessing business, or government, practices from the point of view of their effect on prices, output and, more broadly, on consumer welfare.Competition law is seen as a tool to be used in various circumstances in order to ‘correct’ market as well as non-market (e.g. government) failures, that result from restrictions of competition, to the extent that these affect social welfare. These failures may relate to the protection of personal data and privacy, the protection of the environment, the promotion of social mobility, the harnessing of disruptive innovation, or the mitigation of technology risks. Some go even further and argue that competition law may well be employed in order to preserve a number of other ‘values’ of social justice, thought to be intrinsic in democratic capitalism and the liberal order, and to which competition law should be sensitive.By putting forward the model of ‘polycentric competition law’ and by explaining how this compares with the mainstream ‘monocentric’ vision that has prevailed so far, the study aims to unveil and portray the rites of passage in this transition, and to explore the liminal condition of modern competition law.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2018-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CLP/CUY008","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45435714","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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