Pub Date : 2023-07-01DOI: 10.1017/s0008197323000351
Eva Micheler
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{"title":"Corporate Attribution in Private Law. By Rachel Leow. [Oxford: Hart Publishing, 2022. xxxiv + 246 pp. Hardback £85.00. ISBN 978-1-50994-135-3.]","authors":"Eva Micheler","doi":"10.1017/s0008197323000351","DOIUrl":"https://doi.org/10.1017/s0008197323000351","url":null,"abstract":"An abstract is not available for this content so a preview has been provided. Please use the Get access link above for information on how to access this content.","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135806401","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}
Pub Date : 2023-07-01DOI: 10.1017/s0008197323000399
An abstract is not available for this content so a preview has been provided. As you have access to this content, a full PDF is available via the ‘Save PDF’ action button.
{"title":"CLJ volume 82 issue 2 Cover and Back matter","authors":"","doi":"10.1017/s0008197323000399","DOIUrl":"https://doi.org/10.1017/s0008197323000399","url":null,"abstract":"An abstract is not available for this content so a preview has been provided. As you have access to this content, a full PDF is available via the ‘Save PDF’ action button.","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135806540","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}
Pub Date : 2023-07-01DOI: 10.1017/s0008197323000363
Iain Ramsay
The Rise of Mass Advertising 1840–1914: Law, Enchantment, and the Cultural Boundaries of British Modernity. By Anat Rosenberg. [Oxford University Press, 2022. xx + 393 pp. Hardback £70.00. ISBN 978-0-19285-891-7.] - Volume 82 Issue 2
{"title":"The Rise of Mass Advertising 1840–1914: Law, Enchantment, and the Cultural Boundaries of British Modernity. By Anat Rosenberg. [Oxford University Press, 2022. xx + 393 pp. Hardback £70.00. ISBN 978-0-19285-891-7.]","authors":"Iain Ramsay","doi":"10.1017/s0008197323000363","DOIUrl":"https://doi.org/10.1017/s0008197323000363","url":null,"abstract":"The Rise of Mass Advertising 1840–1914: Law, Enchantment, and the Cultural Boundaries of British Modernity. By Anat Rosenberg. [Oxford University Press, 2022. xx + 393 pp. Hardback £70.00. ISBN 978-0-19285-891-7.] - Volume 82 Issue 2","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135806400","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}
Pub Date : 2023-06-16DOI: 10.1017/S0008197323000193
M. Doucet, L. Porter
Abstract Successful drugs policy must be driven by thoughtful principle and intergovernmental consensus, not by departmental or legal inertia, nor by public (mis)conceptions about drug use. Perhaps the most pressing choice for drugs policymakers at present is between harm reduction and abstinence approaches to drugs policy. To choose between these two approaches, we need to know addiction's normative status: is having an addiction a misfortune or a harm in its own right, even setting aside knock-on health and wellbeing consequences? We argue that the harm of addiction is driven by poor policies, but that harm is not inevitable.
{"title":"WHAT IS THE HARM IN ADDICTION? AUTONOMY, VULNERABILITY, AND THE CASE FOR HARM REDUCTION DRUG POLICY","authors":"M. Doucet, L. Porter","doi":"10.1017/S0008197323000193","DOIUrl":"https://doi.org/10.1017/S0008197323000193","url":null,"abstract":"Abstract Successful drugs policy must be driven by thoughtful principle and intergovernmental consensus, not by departmental or legal inertia, nor by public (mis)conceptions about drug use. Perhaps the most pressing choice for drugs policymakers at present is between harm reduction and abstinence approaches to drugs policy. To choose between these two approaches, we need to know addiction's normative status: is having an addiction a misfortune or a harm in its own right, even setting aside knock-on health and wellbeing consequences? We argue that the harm of addiction is driven by poor policies, but that harm is not inevitable.","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2023-06-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43825142","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}
Pub Date : 2023-06-09DOI: 10.1017/S000819732300020X
N. Sinanis
Abstract The companion 1763 tort cases of Huckle v Money and Wilkes v Wood hold a mythical status in the Anglo-American common law imagination. Few modern accounts of the doctrinal origins of exemplary (or punitive) damages omit reference to them. This article contends that the assumption that these two cases combined to provide damages above and beyond compensation a positive basis at English common law is misconceived. Set back into their historical context, it shows that their true significance is at odds with the decidedly lawmaking significance often ascribed to them by modern judges and scholars alike.
{"title":"THE NORTH BRITON NO. 45 AND THE DOCTRINAL ORIGINS OF EXEMPLARY DAMAGES","authors":"N. Sinanis","doi":"10.1017/S000819732300020X","DOIUrl":"https://doi.org/10.1017/S000819732300020X","url":null,"abstract":"Abstract The companion 1763 tort cases of Huckle v Money and Wilkes v Wood hold a mythical status in the Anglo-American common law imagination. Few modern accounts of the doctrinal origins of exemplary (or punitive) damages omit reference to them. This article contends that the assumption that these two cases combined to provide damages above and beyond compensation a positive basis at English common law is misconceived. Set back into their historical context, it shows that their true significance is at odds with the decidedly lawmaking significance often ascribed to them by modern judges and scholars alike.","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2023-06-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49544939","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}
Pub Date : 2023-06-09DOI: 10.1017/S0008197323000181
Ivan Sin
Abstract This article considers the rule that a claimant who has been wronged will be denied recovery where the damage flowed from a sanction imposed as a result of their own illegal acts such that compensating the claimant would divert a sanction intended to be imposed on the claimant to the defendant. The article has two purposes. The first aim is to provide a counterweight to the overwhelming body of academic literature critical of Gray v Thames Trains Ltd. in which the House of Lords, in applying the illegality bar found it unnecessary to examine the purpose of the criminal sanction against the claimant, preferring to treat its existence as sufficient to lead to a denial of recovery. The article argues that academic support for adoption of an alternative test of “significant personal responsibility” rests on precarious grounds, depending, as it does, on the “unsatisfactory state of law” and “different policies” arguments. This article reconceptualises the rule in Gray and systematically examines the role played by the theme of consistency between the civil law and criminal law in judicial decision-making. The second aim is to evaluate Gray in light of Patel v Mirza. The article critiques the Supreme Court's inconsistent treatment of deterrence in Henderson v Dorset University NHS Foundation Trust and Stoffel v Grondona, and argues that the way the court in Henderson conceptualised the relationship between Gray and Patel discloses an approach which is more closely aligned with that adopted by the minority in Patel.
摘要本文认为，如果损害源于因其自身违法行为而实施的制裁，那么受到冤枉的索赔人将被拒绝赔偿，因此赔偿索赔人将使本应对索赔人实施的制裁转向被告。这篇文章有两个目的。第一个目的是与大量批评Gray v Thames Trains有限公司的学术文献相抗衡，在这些文献中，上议院在适用非法禁令时认为没有必要审查对索赔人的刑事制裁的目的，而倾向于将其存在视为足以导致拒绝追回。文章认为，学术界对采用“重大个人责任”替代测试的支持基于不稳定的理由，正如它所做的那样，取决于“不令人满意的法律状况”和“不同的政策”的论点。本文重新定义了格雷规则，并系统地考察了民法与刑法一致性主题在司法决策中所起的作用。第二个目的是根据Patel诉Mirza一案来评估Gray。文章批评了最高法院在Henderson诉Dorset University NHS Foundation Trust和Stoffel诉Grondona案中对威慑的不一致处理，并认为Henderson案中法院对格雷和帕特尔之间关系的概念化方式揭示了一种与帕特尔案中少数人所采用的方法更为一致的方法。
{"title":"THE ILLEGALITY DEFENCE AND SANCTION-SHIFTING: IN DEFENCE OF GRAY V THAMES TRAIN LTD","authors":"Ivan Sin","doi":"10.1017/S0008197323000181","DOIUrl":"https://doi.org/10.1017/S0008197323000181","url":null,"abstract":"Abstract This article considers the rule that a claimant who has been wronged will be denied recovery where the damage flowed from a sanction imposed as a result of their own illegal acts such that compensating the claimant would divert a sanction intended to be imposed on the claimant to the defendant. The article has two purposes. The first aim is to provide a counterweight to the overwhelming body of academic literature critical of Gray v Thames Trains Ltd. in which the House of Lords, in applying the illegality bar found it unnecessary to examine the purpose of the criminal sanction against the claimant, preferring to treat its existence as sufficient to lead to a denial of recovery. The article argues that academic support for adoption of an alternative test of “significant personal responsibility” rests on precarious grounds, depending, as it does, on the “unsatisfactory state of law” and “different policies” arguments. This article reconceptualises the rule in Gray and systematically examines the role played by the theme of consistency between the civil law and criminal law in judicial decision-making. The second aim is to evaluate Gray in light of Patel v Mirza. The article critiques the Supreme Court's inconsistent treatment of deterrence in Henderson v Dorset University NHS Foundation Trust and Stoffel v Grondona, and argues that the way the court in Henderson conceptualised the relationship between Gray and Patel discloses an approach which is more closely aligned with that adopted by the minority in Patel.","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2023-06-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43711393","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}
Pub Date : 2023-06-08DOI: 10.1017/S0008197323000211
N. Tiverios
Abstract A growing body of literature has emphasised the role of equity as a body of second order principles. These scholars argue that what makes equity distinct is that it assumes a particular outcome at common law, but then controls or disables one party's insistence on her legal entitlements. Where do equitable bars to relief fit within such accounts? This article argues that equitable bars to relief fit comfortably with the view that equity is second order law. This is for a simple reason: equity prevents the unjust exercise of legal entitlements. However, equitable rules are also amenable to being exercised unjustly. To prevent equitable rules being abused, equitable doctrines require some limited discretion to be built in. If this were not the case, then the general law would require a third set of rules to control equity and then a fourth set of rules to control those rules (ad infinitum).
{"title":"PREVENTING THE INFINITE REGRESS: DISCRETION, BARS TO RELIEF AND THE STRUCTURE OF EQUITY","authors":"N. Tiverios","doi":"10.1017/S0008197323000211","DOIUrl":"https://doi.org/10.1017/S0008197323000211","url":null,"abstract":"Abstract A growing body of literature has emphasised the role of equity as a body of second order principles. These scholars argue that what makes equity distinct is that it assumes a particular outcome at common law, but then controls or disables one party's insistence on her legal entitlements. Where do equitable bars to relief fit within such accounts? This article argues that equitable bars to relief fit comfortably with the view that equity is second order law. This is for a simple reason: equity prevents the unjust exercise of legal entitlements. However, equitable rules are also amenable to being exercised unjustly. To prevent equitable rules being abused, equitable doctrines require some limited discretion to be built in. If this were not the case, then the general law would require a third set of rules to control equity and then a fourth set of rules to control those rules (ad infinitum).","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2023-06-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45165110","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}
Pub Date : 2023-05-22DOI: 10.1017/S000819732300017X
T. Allan
Abstract UK public law is often viewed as a sophisticated power struggle between rival institutions, an approach encouraged by the assumption that the law is ultimately dependent on such contingencies as the existence of an official consensus about its sources. From that perspective, legal judgments should be read as strategic moves within the political power-game. We can make better sense of public law if, instead, we interpret it as the articulation and enforcement of standards of legitimate governance, inspired by universal ideals of individual freedom and human dignity. The rule of Law denies the legal validity of arbitrary, unjustified assertions of power inimical to those ideals. Positive law is, at root, an instantiation of natural law, as the interplay of legal rule and underlying principle, characteristic of common law reasoning, confirms. There are important implications for our understanding of the constitutional foundations of judicial review, the limits of parliamentary sovereignty, the nature of the principle of legality, and the scope and content of fundamental rights.
{"title":"CONSTITUTIONALISM AT COMMON LAW: THE RULE OF LAW AND JUDICIAL REVIEW","authors":"T. Allan","doi":"10.1017/S000819732300017X","DOIUrl":"https://doi.org/10.1017/S000819732300017X","url":null,"abstract":"Abstract UK public law is often viewed as a sophisticated power struggle between rival institutions, an approach encouraged by the assumption that the law is ultimately dependent on such contingencies as the existence of an official consensus about its sources. From that perspective, legal judgments should be read as strategic moves within the political power-game. We can make better sense of public law if, instead, we interpret it as the articulation and enforcement of standards of legitimate governance, inspired by universal ideals of individual freedom and human dignity. The rule of Law denies the legal validity of arbitrary, unjustified assertions of power inimical to those ideals. Positive law is, at root, an instantiation of natural law, as the interplay of legal rule and underlying principle, characteristic of common law reasoning, confirms. There are important implications for our understanding of the constitutional foundations of judicial review, the limits of parliamentary sovereignty, the nature of the principle of legality, and the scope and content of fundamental rights.","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2023-05-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48854510","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}
Pub Date : 2023-03-01DOI: 10.1017/S0008197322000927
Zoe Adams
Abstract This paper draws on Marxist scholarship concerning the law's emancipatory potential to shed new light on the history of UK trade unions, and their relationship with law. It traces the historical development of UK trade union law from the nineteenth century to the present day with a view to illustrating the importance of considering not just the content, but also the form, of law, in explaining the role of law in shaping the development of the trade union movement, and in understanding the limits of law, including human rights law, when it comes to realising the emancipatory potential of trade unions in society today. It concludes with some observations about how legal and social actors might make use of their understanding of the legal form when it comes to harnessing the law as part of their political strategies.
{"title":"TRADE UNIONS AND THE LAW: A MATERIALIST PERSPECTIVE","authors":"Zoe Adams","doi":"10.1017/S0008197322000927","DOIUrl":"https://doi.org/10.1017/S0008197322000927","url":null,"abstract":"Abstract This paper draws on Marxist scholarship concerning the law's emancipatory potential to shed new light on the history of UK trade unions, and their relationship with law. It traces the historical development of UK trade union law from the nineteenth century to the present day with a view to illustrating the importance of considering not just the content, but also the form, of law, in explaining the role of law in shaping the development of the trade union movement, and in understanding the limits of law, including human rights law, when it comes to realising the emancipatory potential of trade unions in society today. It concludes with some observations about how legal and social actors might make use of their understanding of the legal form when it comes to harnessing the law as part of their political strategies.","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2023-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45732113","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}
Pub Date : 2023-03-01DOI: 10.1017/S0008197323000053
Rebecca L. Freund
{"title":"Imperial Incarceration: Detention without Trial in the Making of British Colonial Africa. By Michael Lobban. [Cambridge University Press, 2021. xii + 450 pp. Hardback £90.00. ISBN 978-1-316-51912-7.]","authors":"Rebecca L. Freund","doi":"10.1017/S0008197323000053","DOIUrl":"https://doi.org/10.1017/S0008197323000053","url":null,"abstract":"","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2023-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47554611","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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