{"title":"EnricoBonadio and Chen WeiZhu (eds), Music Borrowing and Copyright Law: A Genre‐by‐Genre AnalysisOxford: Hart, 2023, 704pp, hb £126.00","authors":"Max H. Y. Wong","doi":"10.1111/1468-2230.12884","DOIUrl":"https://doi.org/10.1111/1468-2230.12884","url":null,"abstract":"","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2024-03-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140201818","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Under the common banner of a search for a ‘more rational’ approach to choice of law, US conflict‐of‐laws scholars of the late 1950s and the 1960s produced an impressive array of new technical instruments for their discipline. This article situates their work in the broader contexts of innovations in the social‐ and behavioural sciences and in legal‐ and political theory of this period. On this contextual reading, the methodological clashes of the so‐called ‘choice‐of‐law revolution’ change in shape and become part of a much larger story – one with relevance also outside the discipline and beyond the United States. That story is about different degrees of faith in the capacities of technical instruments and practices, like legal doctrine, to manage and resolve conflict, by making disparate factors commensurable, and by affording outcomes that optimise all competing interests in play. By revisiting these mid‐century battles over conflicts methods in light of contemporaneous understandings of ‘rationality’ and ‘legitimacy’ in other fields, the article contributes to our understanding of the genealogy of post‐war choice of law, as well as of the history of these ideals – and their technical means – in modern legal thought.
{"title":"Rationalising Mid‐Century Choice of Law: Legal Technique and its Limits in the ‘Dark Science’ of Conflicts","authors":"Jacco Bomhoff","doi":"10.1111/1468-2230.12879","DOIUrl":"https://doi.org/10.1111/1468-2230.12879","url":null,"abstract":"Under the common banner of a search for a ‘more rational’ approach to choice of law, US conflict‐of‐laws scholars of the late 1950s and the 1960s produced an impressive array of new technical instruments for their discipline. This article situates their work in the broader contexts of innovations in the social‐ and behavioural sciences and in legal‐ and political theory of this period. On this contextual reading, the methodological clashes of the so‐called ‘choice‐of‐law revolution’ change in shape and become part of a much larger story – one with relevance also outside the discipline and beyond the United States. That story is about different degrees of faith in the capacities of technical instruments and practices, like legal doctrine, to manage and resolve conflict, by making disparate factors commensurable, and by affording outcomes that optimise all competing interests in play. By revisiting these mid‐century battles over conflicts methods in light of contemporaneous understandings of ‘rationality’ and ‘legitimacy’ in other fields, the article contributes to our understanding of the genealogy of post‐war choice of law, as well as of the history of these ideals – and their technical means – in modern legal thought.","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2024-03-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140147180","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article delves into a specific facet of the widely acknowledged ‘paradox of constitutionalism’. Specifically, it focuses on the tension between the disruptive aspect of constituent power and its alleged authority. Paying special attention to the Chilean social outbreak and the constitutional process that followed, the article draws inspiration from Robert Brandom's recent work to examine a constituent moment in action and argues that the constitutional paradox can be productively addressed if the pragmatic and semantic dimensions of the constituent moment are both distinguished and harmonised. By aligning these two aspects, the article offers a novel version of a ‘relational’ approach to the paradox, revealing the potential for reconciling the disruptive and authoritative elements of a constituent moment, and providing fresh insights into the Chilean case.
{"title":"The Authority of Constituent Power","authors":"Federico Szczaranski","doi":"10.1111/1468-2230.12882","DOIUrl":"https://doi.org/10.1111/1468-2230.12882","url":null,"abstract":"This article delves into a specific facet of the widely acknowledged ‘paradox of constitutionalism’. Specifically, it focuses on the tension between the disruptive aspect of constituent power and its alleged authority. Paying special attention to the Chilean social outbreak and the constitutional process that followed, the article draws inspiration from Robert Brandom's recent work to examine a constituent moment in action and argues that the constitutional paradox can be productively addressed if the pragmatic and semantic dimensions of the constituent moment are both distinguished and harmonised. By aligning these two aspects, the article offers a novel version of a ‘relational’ approach to the paradox, revealing the potential for reconciling the disruptive and authoritative elements of a constituent moment, and providing fresh insights into the Chilean case.","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2024-03-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140147252","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Intellectual Property Absurdism or: How I Learned to Stop Worrying and Love IP","authors":"Patrick R. Goold","doi":"10.1111/1468-2230.12875","DOIUrl":"https://doi.org/10.1111/1468-2230.12875","url":null,"abstract":"<p><i>Enrico Bonadio and Aislinn O'Connell</i>, <b>Intellectual Property Excesses: Exploring the Boundaries of IP Protection</b>, Oxford: Hart Publishing, 2022, 336 pp, hb £81.00, pb £40.49</p>","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2024-03-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140046331","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In Trustees of the Barry Congregation of Jehovah's Witnesses v BXB, the Supreme Court held that there was a single approach to determining all cases of vicarious liability. No ‘tailoring’ of that approach was required either because the defendant was a religious organisation or because the tort in question was sexual abuse. It followed that the Court of Appeal had erred in placing significance on the authority conferred by the defendant on the tortfeasor to guide the behaviour of the claimant when determining vicarious liability. This note explores whether there is any role for conferred authority after Barry. To accommodate distinctions in the existing cases and contain further unwarranted expansion, it is argued that it is necessary to recognise a discrete form of strict liability for the tort of another, distinct from vicarious liability, that responds to the potential for conferred authority to be abused.
{"title":"Vicarious Liability and Conferred Authority: Trustees of the Barry Congregation of Witnesses v BXB","authors":"Christine Beuermann","doi":"10.1111/1468-2230.12877","DOIUrl":"https://doi.org/10.1111/1468-2230.12877","url":null,"abstract":"In <jats:italic>Trustees of the Barry Congregation of Jehovah's Witnesses</jats:italic> v <jats:italic>BXB</jats:italic>, the Supreme Court held that there was a single approach to determining all cases of vicarious liability. No ‘tailoring’ of that approach was required either because the defendant was a religious organisation or because the tort in question was sexual abuse. It followed that the Court of Appeal had erred in placing significance on the authority conferred by the defendant on the tortfeasor to guide the behaviour of the claimant when determining vicarious liability. This note explores whether there is any role for conferred authority after <jats:italic>Barry</jats:italic>. To accommodate distinctions in the existing cases and contain further unwarranted expansion, it is argued that it is necessary to recognise a discrete form of strict liability for the tort of another, distinct from vicarious liability, that responds to the potential for conferred authority to be abused.","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2024-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140019690","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article examines how defendant self‐conviction via guilty plea changes the application of criminal law, specifically in cases in which there is no right answer as to whether a defendant is guilty prior to trial, despite agreement over descriptive facts. These cases are referred to as ‘factual hard cases’. It suggests that defendants trying themselves in these cases creates risks for defendants and criminal justice systems – the application of law becomes driven by defendant judgement, with accompanying imprudence, vulnerability, and subjectivity, and an expressive function of the criminal trial is stifled. The results of an original empirical study are presented to demonstrate these risks. The article argues that as a result of these risks, and the decoupling of guilty pleas from ethical behaviours, factual hard cases present a challenge to existing plea‐based reduction regimes and demonstrate the need for careful thought about what guilty pleas are and why we reward them.
{"title":"The Challenge of ‘Factual Hard Cases’ for Guilty Plea Regimes","authors":"Rebecca K. Helm","doi":"10.1111/1468-2230.12876","DOIUrl":"https://doi.org/10.1111/1468-2230.12876","url":null,"abstract":"This article examines how defendant self‐conviction via guilty plea changes the application of criminal law, specifically in cases in which there is no right answer as to whether a defendant is guilty prior to trial, despite agreement over descriptive facts. These cases are referred to as ‘factual hard cases’. It suggests that defendants trying themselves in these cases creates risks for defendants and criminal justice systems – the application of law becomes driven by defendant judgement, with accompanying imprudence, vulnerability, and subjectivity, and an expressive function of the criminal trial is stifled. The results of an original empirical study are presented to demonstrate these risks. The article argues that as a result of these risks, and the decoupling of guilty pleas from ethical behaviours, factual hard cases present a challenge to existing plea‐based reduction regimes and demonstrate the need for careful thought about what guilty pleas are and why we reward them.","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2024-02-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140019639","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In Mackie Motors v RCI, the High Court and the Court of Appeal dismissed an argument based on the ‘relational contract’ in a way which recalled its dismissal 20 years earlier in Baird Textiles v Marks and Spencer. It did not seem to have had any effect that after the 2013 ‘landmark decision’ of Leggatt J in Yam Seng v ITC the ‘relational contract’ has been considered an ‘established concept’ in a number of High Court decisions. But these decisions have all been received very coolly by the Court of Appeal, and the High Court decision in Mackie Motors may indeed represent an acceptance of the attitude of the Court of Appeal. This note will argue that, if this is the case, it would constitute a regrettable failure to develop the relational contract as a concept of great practical value in cases such as Baird Textiles and Mackie Motors. It would also constitute an even more regrettable failure to use the relational contract to understand good faith and the nature of all contractual obligations along one of the lines set out by Leggatt J in Yam Seng.
在 Mackie Motors v RCI 一案中，高等法院和上诉法院驳回了基于 "关系合同 "的论点，其方式令人想起 20 年前在 Baird Textiles v Marks and Spencer 一案中被驳回的方式。在 2013 年 Leggatt 法官在 Yam Seng 诉 ITC 一案中做出 "里程碑式的判决 "之后，"关系合同 "在高等法院的多项判决中被视为 "既定概念"，但这似乎并未产生任何影响。但上诉法院对这些判决的反应都非常冷淡，高等法院在 Mackie Motors 案中的判决可能确实代表了对上诉法院态度的接受。本说明将论证，如果情况确实如此，那么在 Baird Textiles 案和 Mackie Motors 案等案件中，未能将关系合同发展成一个具有重大实用价值的概念，将是令人遗憾的。此外，如果未能按照 Leggatt 法官在 Yam Seng 案中提出的思路之一，利用关系合同来理解诚信和所有合同义务的性质，那就更令人遗憾了。
{"title":"Plus ça change, plus c'est la même chose: Mackie Motors v RCI and Baird Textiles v Marks and Spencer","authors":"David Campbell","doi":"10.1111/1468-2230.12878","DOIUrl":"https://doi.org/10.1111/1468-2230.12878","url":null,"abstract":"In <jats:italic>Mackie Motors</jats:italic> v <jats:italic>RCI</jats:italic>, the High Court and the Court of Appeal dismissed an argument based on the ‘relational contract’ in a way which recalled its dismissal 20 years earlier in <jats:italic>Baird Textiles</jats:italic> v <jats:italic>Marks and Spencer</jats:italic>. It did not seem to have had any effect that after the 2013 ‘landmark decision’ of Leggatt J in <jats:italic>Yam Seng</jats:italic> v <jats:italic>ITC</jats:italic> the ‘relational contract’ has been considered an ‘established concept’ in a number of High Court decisions. But these decisions have all been received very coolly by the Court of Appeal, and the High Court decision in <jats:italic>Mackie Motors</jats:italic> may indeed represent an acceptance of the attitude of the Court of Appeal. This note will argue that, if this is the case, it would constitute a regrettable failure to develop the relational contract as a concept of great practical value in cases such as <jats:italic>Baird Textiles</jats:italic> and <jats:italic>Mackie Motors</jats:italic>. It would also constitute an even more regrettable failure to use the relational contract to understand good faith and the nature of all contractual obligations along one of the lines set out by Leggatt J in <jats:italic>Yam Seng</jats:italic>.","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2024-02-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140019693","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article considers a novel frame for state duties towards ‘others’ and towards migrants. Existing literature on the cosmopolitan role of the state and on the foundations of a right to migrate links relevant duties to principles of no harm to outsiders, other-regardingness, or hospitality. This article explores the possibility that we should rather justify relevant duties from the perspective of citizenship and from within the social contract between state and citizen. It advances a three-step argument in support of the idea that the state, in discharging its responsibilities to ‘others’, ought to be guided by the perspective of the duties it owes to its own citizens to fulfil the cosmopolitan value of their condition. The perspective ‘from within’ that the article thus proposes sheds novel light on the global role of the sovereign state and on the meaning of cosmopolitanism. In reconciling the former with the latter, it nudges the theory of cosmopolitan sovereignty out of an impasse. And it ultimately makes room for a conception of migration as freedom.
{"title":"The Citizen as Other: The Case from Within for Cosmopolitan State Duties and Freedom to Migrate","authors":"Francesca Strumia","doi":"10.1111/1468-2230.12867","DOIUrl":"https://doi.org/10.1111/1468-2230.12867","url":null,"abstract":"This article considers a novel frame for state duties towards ‘others’ and towards migrants. Existing literature on the cosmopolitan role of the state and on the foundations of a right to migrate links relevant duties to principles of no harm to outsiders, other-regardingness, or hospitality. This article explores the possibility that we should rather justify relevant duties from the perspective of citizenship and from within the social contract between state and citizen. It advances a three-step argument in support of the idea that the state, in discharging its responsibilities to ‘others’, ought to be guided by the perspective of the duties it owes to its own citizens to fulfil the cosmopolitan value of their condition. The perspective ‘from within’ that the article thus proposes sheds novel light on the global role of the sovereign state and on the meaning of cosmopolitanism. In reconciling the former with the latter, it nudges the theory of cosmopolitan sovereignty out of an impasse. And it ultimately makes room for a conception of migration as freedom.","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2024-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139755022","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Airports are contested infrastructures. They are regarded both as icons of modernity and as a threat to a climate-neutral future. Judicial review is increasingly relied upon to determine the legality of planning permissions for further airport development in light of climate obligations. Focusing on regional airport development and the review of planning approvals for expansion at Bristol, Southampton and Stansted airports, this article shows how the relevant policies and legislation, as well as the courts in applying these, find cohesion between airport expansion and climate action. These efforts, nonetheless, are tantamount to an attempt at squaring the circle: the fundamental disconnect between climate commitments and the increase in greenhouse gas emissions from regional airport expansion remains unsettled.
{"title":"Squaring the Circle? Regional Airport Expansion, Climate Change and the Planning Regime","authors":"Sanja Bogojević","doi":"10.1111/1468-2230.12868","DOIUrl":"https://doi.org/10.1111/1468-2230.12868","url":null,"abstract":"Airports are contested infrastructures. They are regarded both as icons of modernity and as a threat to a climate-neutral future. Judicial review is increasingly relied upon to determine the legality of planning permissions for further airport development in light of climate obligations. Focusing on regional airport development and the review of planning approvals for expansion at Bristol, Southampton and Stansted airports, this article shows how the relevant policies and legislation, as well as the courts in applying these, find cohesion between airport expansion and climate action. These efforts, nonetheless, are tantamount to an attempt at squaring the circle: the fundamental disconnect between climate commitments and the increase in greenhouse gas emissions from regional airport expansion remains unsettled.","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2024-01-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139518361","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In recent years, a number of academics, judges and politicians have noted that the UK Supreme Court has adopted a more restrained approach when it comes to public law than it had done previously. This article assesses the quantitative and qualitative evidence for this apparent conservative turn. It finds that, in a number of important respects, the Court has indeed adopted a more restrained approach to public law issues in recent years. However, conservatism and caution are not apparent across the board, and there are a number of areas in which the approach of the Court has been anything but restrained. Overall, the Court should not be considered ideologically conservative, nor should it be deemed constitutionally supine. Rather, it is most accurate to suggest that the Court is basing its judgments on a vision of the law rooted in the tradition of political constitutionalism.
{"title":"Has the UK Supreme Court Become More Restrained in Public Law Cases?","authors":"Lewis Graham","doi":"10.1111/1468-2230.12866","DOIUrl":"https://doi.org/10.1111/1468-2230.12866","url":null,"abstract":"In recent years, a number of academics, judges and politicians have noted that the UK Supreme Court has adopted a more restrained approach when it comes to public law than it had done previously. This article assesses the quantitative and qualitative evidence for this apparent conservative turn. It finds that, in a number of important respects, the Court has indeed adopted a more restrained approach to public law issues in recent years. However, conservatism and caution are not apparent across the board, and there are a number of areas in which the approach of the Court has been anything but restrained. Overall, the Court should not be considered ideologically conservative, nor should it be deemed constitutionally supine. Rather, it is most accurate to suggest that the Court is basing its judgments on a vision of the law rooted in the tradition of political constitutionalism.","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2024-01-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139461298","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"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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