The Cambridge Law Journal最新文献

Parents’ discrimination against their children is lawful. But the family, as an institution in which social goods are allocated, is as significant as the sites in which anti-discrimination law operates. At least prima facie, therefore, parents should be governed by legal prohibitions on discrimination. While state incursion into family life poses a threat to children’s autonomy, so does parental discrimination against children. Anti-discrimination law therefore needs new institutions to promote the values of non-discrimination in a part of society that currently sits outside anti-discrimination law’s reach. We identify existing regimes that may provide a starting point for this work.

“Constitutional values” is a term which appears to relate to concepts of what is now called public law. By constitutional values, I mean the basic ideas and interests which structure relations between the individual and the state, and the obligations to which they give rise, which underlie the common law and to which it gives recognition in more or less articulated forms. These are ideas and interests such as liberty, private life, freedom of expression and access to justice. Constitutional values and human rights overlap, but they are not necessarily and always the same, either in content or in effect. In exploring this topic I hope to retrieve and bring to the surface an important aspect of the common law in terms of both private law and public law.

In this paper, I suggest that taking seriously the way in which the trust is founded on a duty of conscience has far-reaching ramifications for the appropriate attitude towards new forms of trusts that are designed to allow people to enjoy the benefits of ownership without incurring the duties that come with it. The morally freighted concept of conscience that lies at the heart of trust law means that every claim against trustees invokes a demand that the trustee abide by the requirements of their conscience. The conditions on the right to blame others for a moral wrongdoing, and the relationship between blaming and suing in the context of trust law, lead to the conclusion that, in novel forms of trust that are geared towards the creation of a morally bankrupt “orphan property”, beneficiaries do not have moral standing to sue the trustee for a breach of trust.

In the most important funding decision in 20 years, the UK Supreme Court has declared in R. (PACCAR Inc. and others) v Competition Appeal Tribunal and others [2023] UKSC 28, [2023] 1 W.L.R. 2594 that, as a matter of statutory interpretation, a third-party funder’s litigation funding agreement (LFA) is a damages-based agreement (DBA) because third-party funders are offering “claims management services”. This decision, which overturned both the earlier Divisional Court and the Competition Appeal Tribunal decisions, and long-held industry and judicial understanding, has had an immediate impact upon UK litigation. Many LFAs will require immediate re-negotiation, given their non-compliance with the DBA legislation; but for some, the ramifications are much more serious. This article traces the legislation, soft law and law reform activity which preceded this momentous event; it suggests that a key principle of statutory interpretation which governed the outcome might arguably be re-evaluated in future case law; it discusses the possibility of legislative reversal; and it predicts the ramifications of the PACCAR decision upon (especially consumer) litigation unless reversed.

Amid the growing calls for the complete prohibition of the use by law enforcement authorities of live facial recognition (LFR) technology in public spaces, this article advocates for an incremental approach to regulating the use of the technology. By analysing legislative instruments, judicial decisions, deployment practices of UK law enforcement authorities, various procedural and policy documents, as well as available safeguards, the article suggests incremental adjustments to the existing legal framework instead of sweeping regulatory change. The proposed approach calls for adopting national legal rules governing watch lists and introducing spatial, temporal and contextual limitations on the deployment of technology based on the assessment of proportionality and necessity. To enhance the effectiveness of overt surveillance using LFR, the article recommends adopting a transparency procedure that promotes accountability without undermining the objectives of law enforcement. Alternatively, the overt use of the technology should be limited to deterring the commission of crimes and safeguarding public safety, where transparency does not undermine its effectiveness. Limiting the scope of overt use of LFR technology entails that law enforcement agencies primarily utilise covert surveillance, with prior judicial approval, except in urgent cases, as this would improve effective criminal investigation and public safety. The legal adjustments proposed in this article can be implemented through flexible secondary legislation or local policies, rather than rigid statutory rules.