Oxford Journal of Legal Studies最新文献

The article systematically assesses the extent to which the Administration (Restrictions on Disposal etc. to Connected Persons) Regulations 2021 achieve the goal of the government to quell the negative perceptions of pre-pack administration. The pre-pack has generated much criticism from disenfranchised groups who regard the practice with much suspicion. These criticisms have triggered questions as to whether and how to structure the regulation of pre-packs. The article introduces original frames through which to distinguish the competing regulatory visions of the pre-pack, as well as to systematically evaluate the regulatory frameworks that have been introduced. The evaluation reveals a gap between the regulatory visions of the critics and the regulator. This gap has impacted the reception and effectiveness of successive regulatory frameworks. Combining its frames with the expectation gap theory, the article offers a critical assessment of the 2021 reforms, which address most but not all the criticisms of the pre-pack.

In Legal Directives and Practical Reasons, Noam Gur has presented a novel account, called the dispositional model, to explain how law bears on our normative practical reasons. Gur holds that his model is superior to the current models, namely the standard weighing model and Joseph Raz's exclusionary model. Although his work provides useful insights into the practical impact of law, I argue that: (i) his challenge against the exclusionary model is valid only insofar as one accepts Raz's normal justification thesis and dependence thesis; (ii) his argument against the weighing model misses its target, because it attacks the model as a decision-making method, not as an account of practical reason; and (iii) his dispositional model solely constitutes a decision-making strategy and does not offer a third alternative answer to the question of how law affects our normative practical reasons. Hence, the dispositional model is not a competitor to the weighing and the exclusionary model, and the problem of accounting for the normativity of law remains.

For centuries, parliamentary privilege has stood as a bar against judicial review over the internal affairs of Parliament. The literature surrounding parliamentary privilege has mostly been about the scope of the privilege; few have discussed if the existence of the privilege itself is justified. This article undertakes that task, by examining parliamentary privilege as a defence against judicial review. Three propositions will be made. First, in the context of judicial review, parliamentary privilege is defined by the outer limits of the principle of exclusive cognisance. Article 9 of the Bill of Rights 1689 adds nothing. Second, parliamentary privilege as it relates to judicial review is incompatible with the two prevailing models of the separation of powers. Third, six arguments that may be made in favour of parliamentary privilege will be refuted. Accordingly, parliamentary privilege should no longer provide a defence towards judicial review.

Sceptics of judicial review-from Jeremy Waldron to those in the Judicial Power Project-have tended to attribute to their opponents an erroneous prioritisation of 'justice' over 'legitimacy'. They claim that those who make the case for judicial review do so on the grounds that 'judges know best', and that judicial review therefore helps promote the overall justness of a state's social order-rather than on the grounds that it helps enhance the overall legitimacy of a state's authority. This article interrogates that line of attack. It explores its roots in political theory, particularly the idea that those guilty of it (such as Aileen Kavanagh) follow in John Rawls's supposed prioritisation of justice over legitimacy. And it turns to republican and later-Rawlsian thinking on these two concepts to see whether it may offer a sound basis upon which the case for judicial review can be made … legitimately.

The new law of contractual discretion is developing apace. This article addresses three major issues in this dynamic field. First, the article propounds an analytical framework for understanding the nature and practice of reasonableness review in the contractual setting, based on doctrinal exegesis of the full run of cases on contractual discretion. Significantly, the analysis demonstrates that review of contractual discretion is characterised by a 'variable intensity' approach: the intensity with which courts scrutinise exercises of discretion is dependent on a series of contextual factors. Second, the article analyses the genus of the implied term, which imposes legal constraints on contractual decision-makers, arguing that the term is properly conceptualised as a term implied in law. Third, the article addresses the remedial consequences of non-compliance with implied fetters, identifying three different remedial models in the case law. The article challenges the common assertion that damages are the invariable remedy, arguing that an impugned exercise of discretion may be void or voidable.