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Using AI to Mitigate the Employee Misclassification Problem Modern Law Review (IF 1.5) Pub Date : 2024-09-15 Guy Davidov
Misclassification of employees as independent contractors is widespread. This article aims to make two contributions. My first goal is to sharpen the explanation of why misclassifications persist; I argue that three well‐known problems – the indeterminacy of employee status tests, the barriers to self‐enforcement, and the inequality of bargaining power – together combine to give employers de facto
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Performative Environmental Law Modern Law Review (IF 1.5) Pub Date : 2024-09-09 Emma Lees, Ole W. Pedersen
Performative law is law ‘just for show’. Where the law expresses a commitment to targets, objectives and aspirations which are, in a strict sense, legally binding, but which are ultimately hard to formally enforce, it can take on a highly symbolic or gestural appearance. Environmental law is particularly vulnerable to performativity. This is because of the nature of the environment as an object of
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Thinking Legally about Remedy in Judicial Review: R (on the application of Imam) v London Borough of Croydon Modern Law Review (IF 1.5) Pub Date : 2024-09-02 Lia Lawton
In R (on the application of Imam) v London Borough of Croydon, the Supreme Court considered the relevance of a local authority's resources on the curial discretion as to remedy in judicial review. This question was addressed in the context of a breach of the authority's duty under section 193(2) of the Housing Act 1996 to secure suitable accommodation for a person with priority need who is not intentionally
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Legal Parenthood, Novel Reproductive Practices, and the Disruption of Reproductive Biosex Modern Law Review (IF 1.5) Pub Date : 2024-08-14 Elizabeth Chloe Romanis, Alan Brown
There are reproductive technologies on the horizon that challenge the fundamentals of human reproduction – the need for sperm, eggs, and someone to gestate the pregnancy. We argue that such technologies collectively undermine our conception of reproductive biosex as we know it. In this article, we (re)examine the attribution and determination of legal parenthood in assisted reproduction in light of
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Thirty Years of Legal Research: An Empirical Analysis of Outputs Submitted to RAE and REF (1990‐2021) Modern Law Review (IF 1.5) Pub Date : 2024-08-14 Phillip Johnson, Johanna Gibson
The external assessment of the research activities of universities in the United Kingdom began in 1986. In 1992, for the first time, the Research Assessment Exercise (RAE) required institutions to submit books, articles and other ‘outputs’ for peer assessment and ultimately ranking. This exercise was followed by others in 1996, 2001 and 2008, and then by a revised approach, the Research Evaluation
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MihneaTănăsescu, Understanding the Rights of Nature: A Critical Introduction, Bielefeld: transcript Verlag, 2022, 165 pp, pb, €40.00. Modern Law Review (IF 1.5) Pub Date : 2024-07-06 Roger Cotterrell
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‘AI is not an Inventor’: Thaler v Comptroller of Patents, Designs and Trademarks and the Patentability of AI Inventions Modern Law Review (IF 1.5) Pub Date : 2024-07-05 Rita Matulionyte
The increasing use of Artificial Intelligence (AI) technologies in inventive processes raises numerous patent law issues, including whether AI can be an inventor under law and who owns the AI‐generated inventions. The UK Supreme Court decision in Thaler v Comptroller of Patents, Designs and Trademarks has provided an ultimate answer to this question: AI cannot be an inventor for the purposes of patent
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MatthewFlinders and ChrisMonaghan (eds), Questions of Accountability: Prerogatives, Power and Politics, Oxford, Hart Publishing, 2023, 344 pp, hb, £81.00 Modern Law Review (IF 1.5) Pub Date : 2024-07-04 C. R. G. Murray
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Still No(,) More Bolam Please: McCulloch and others v Forth Valley Health Board Modern Law Review (IF 1.5) Pub Date : 2024-07-04 Clark Hobson
McCulloch v Forth Valley Health Board concerned an allegation of negligence, in failing to consider treating pericarditis with non‐steroidal anti‐inflammatory drugs as a reasonable alternative treatment and not discussing this option with the patient. Montgomery v Lanarkshire Health Board held that a medical professional must disclose to a patient material risks and any reasonable alternative treatments
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SuzanneLenon and DanielMonk (eds), Inheritance Matters: Kinship, Property, Law, Oxford, Hart Publishing, 2023, 326 pp, hb, £90.00 Modern Law Review (IF 1.5) Pub Date : 2024-07-04 Alan Brown
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Gambling Control in a Cost‐of‐Living Crisis: An Analysis of the White Paper High Stakes: Gambling Reform for the Digital Age (2023) Modern Law Review (IF 1.5) Pub Date : 2024-07-02 Kate Bedford
This article explains the broader stakes of contemporary British gambling reform debates, via an analysis of the White Paper High Stakes: Gambling Reform for the Digital Age (2023). I lay out the context to the White Paper, and I summarise its main proposals, focusing especially on efforts to reduce the harms caused by gambling. I also offer a critical analysis of one particularly significant and contentious
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Smith v Fonterra and the Climatisation of Tort Law Modern Law Review (IF 1.5) Pub Date : 2024-06-26 Sam Bookman
How should tort law respond to climate change? In Smith v Fonterra, New Zealand's Supreme Court provided some important answers. This note summarises the decision, and situates it within broader debates about the function of tort law and its necessary evolution in response to climate change. The Supreme Court's decision hints at possibilities for the ‘climatisation’ of tort law, and highlights the
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Does Digital Status Unlawfully Penalise EU Citizens Accessing the UK's Private Rented Sector? Modern Law Review (IF 1.5) Pub Date : 2024-06-25 Jed Meers, Joe Tomlinson, Alice Welsh, Charlotte O'Brien
In the past few years, more than six million EU citizens living in the UK have transitioned to a new immigration status. The only evidence they have of this new status is in digital form. This group is now navigating the UK's ‘compliant environment,’ designed to deter unauthorised migration, with this new form of status. This has created an unpredictable new dynamic with serious risks of discrimination
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The Connection‐Friction Axis in Devolved Health Policy and Law‐Making in the UK: A Case Study of Organ Donation Modern Law Review (IF 1.5) Pub Date : 2024-05-25 Ruby Reed‐Berendt, Anne‐Maree Farrell, Matthew Watkins, John Harrington
This article explores the dynamics of devolved health policy and law‐making in the UK, drawing on a case study of opt‐out organ donation reform. Given that health is a significant area of devolved competence, such case studies offer the opportunity to examine both similarities and differences in approach between the four nations in the context of the UK's evolving constitutional settlement. We argue
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Unpicking Torts: Elements, Conditions of Actionability and Standing Rules Modern Law Review (IF 1.5) Pub Date : 2024-05-21 John Murphy
There is a clear tendency among judges and scholars to regard torts like chemical compounds: as things comprising a fixed list of elements (such as duty, breach, causation etc). But it is sometimes said that claimants in tort cases must also demonstrate that a condition of actionability has been met, or that a standing requirement within a particular tort has been satisfied. The use of these other
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Public (Trust) Rights in Open Space: Day v Shropshire Council Modern Law Review (IF 1.5) Pub Date : 2024-05-20 Antonia Layard
In Day v Shropshire Council (Day), the Supreme Court considered the effect of a statutory trust under section 10 of the Open Spaces Act 1906 on a subsequent purchaser. Finding for the claimant, a local resident resisting development, the Supreme Court unanimously held that the local authority's failure to give notice and consider objections under the Local Government Act 1972 meant that the site's
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Folúkẹ́Adébísí, Decolonisation and Legal Knowledge: Reflections on Power and Possibility, Bristol, Bristol University Press, 2023, 204 pp, hb £85.99, pb £26.99 Modern Law Review (IF 1.5) Pub Date : 2024-05-10 Bhumika Billa
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Universal Jurisdiction: Law out of Context Modern Law Review (IF 1.5) Pub Date : 2024-05-10 Devika Hovell, Mara Malagodi
Universal jurisdiction enables the prosecution of international crimes by domestic courts in the absence of any nexus between the prosecuting state and the crime charged. While the temptation is for domestic judges to proceed with ‘business as usual’ in the conduct of such trials, difficulties in the practice of universal jurisdiction reflect the importance of developing a better understanding of the
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Luke DimitriosSpieker, EU Values before the Court of Justice: Foundations, Potential, Risks, Oxford, Oxford University Press, 2023, 356 pp, hb £110.00 Modern Law Review (IF 1.5) Pub Date : 2024-05-02 Tom L. Boekestein
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JamesThornton, Criminal Justice in Austerity: Legal Aid, Prosecution and the Future of Criminal Legal Practice, London: Bloomsbury Publishing, 2023, 192 pp, hb £85.00 Modern Law Review (IF 1.5) Pub Date : 2024-04-25 Lotte Young Andrade
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Zainab BatulNaqvi, Polygamy, Policy and Postcolonialism in English Marriage Law; A Critical Feminist Analysis, Bristol: Bristol University Press, 2023, 239 pp, hb £85.00 Modern Law Review (IF 1.5) Pub Date : 2024-04-24 Rajnaara C. Akhtar
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Institutional Choice in the Internal Market Modern Law Review (IF 1.5) Pub Date : 2024-04-19 Martijn van den Brink
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Priority Setting as the Blind Spot of Administrative Law Enforcement: A Theoretical, Conceptual, and Empirical Study of Competition Authorities in Europe Modern Law Review (IF 1.5) Pub Date : 2024-04-17 Or Brook, Katalin J. Cseres
Priority setting by independent regulatory agencies (IRAs) is an invisible, yet essential component of regulatory law enforcement. The selection of which cases to enforce and which to disregard is vital given IRAs’ finite resources, and due to the function of concretising open‐ended administrative norms. Clear enforcement priorities allow IRAs to focus on matters of genuine economic, societal, and
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A Bird's‐Eye View of Animals in the Law Modern Law Review (IF 1.5) Pub Date : 2024-04-16 Visa A. J. Kurki
The article develops an analytic account of nonhuman animals’ current legal status. Animals are often characterised as legal things and property, but this characterisation is both simplistic and, in some cases, incorrect. The article seeks to dispel a number of orthodoxies regarding the legal status of animals and offer a more nuanced and contextual account. The emphasis is on Western law, with a particular
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Zedra Fiduciary Services (UK) Ltd v Attorney General: the contemporary Scope of the Statutory Cy‐près Doctrine Modern Law Review (IF 1.5) Pub Date : 2024-04-11 John Picton
Historically, the cy‐près doctrine required that, upon the substantive alteration of a charitable trust, the new purposes should be ‘as near as possible’ to the old. This is no longer the case. Subject to section 67(3) of the Charities Act 2011, the redrafting court or Charity Commission must have regard to factors other than proximity of purpose. Zedra Fiduciary Services (UK) Ltd v Attorney General
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Economic Imaginaries and Environmental Regulation Modern Law Review (IF 1.5) Pub Date : 2024-04-11 Olivia Hamlyn
While literature has explored the influence of imagination and economic thought on (environmental) law, less attention has been paid to the influence of the economic imagination – specifically economic imaginaries – and their capacity to shape environmental regulation. Taking EU pesticides policy and regulation as a case study and drawing on theory regarding the performative power of imaginaries, this
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ElizabethWicks, Suicide and the Law, Oxford, Hart Publishing, 2023, 221 pp, hb £85.00 Modern Law Review (IF 1.5) Pub Date : 2024-04-10 Heloise Robinson
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Byers v Saudi National Bank: What's the Wrong in Knowing Receipt? Modern Law Review (IF 1.5) Pub Date : 2024-04-08 Rory Gregson, Timothy Pilkington
In Byers v Saudi National Bank, the Supreme Court held that where a right is transferred in breach of trust and the beneficiary's beneficial interest in the right is extinguished by the transfer, a personal claim for knowing receipt is not available against the recipient. Lord Briggs and Lord Burrows offered different reasons for this conclusion. This note argues that their approaches, while superficially
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R (on the application of W80) v Director General of the Independent Office of Police Conduct: Landmark Ruling or Business as Usual? Modern Law Review (IF 1.5) Pub Date : 2024-03-21 Clare Torrible
On 5 July 2023 the Supreme Court handed down its judgment in R (on the application of W80) v Director General of the Independent Office for Police Conduct. The issue before the Court was which test should be applied in assessing whether officers’ use of force amounts to misconduct; the criminal law test for self‐defence (as the Divisional Court found), the test set out in the Police Conduct Regulations
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VirginiaMantouvalou, Structural Injustice and Workers Rights, Oxford, OUP, 2023, 208pp, hb £90.00 Modern Law Review (IF 1.5) Pub Date : 2024-03-20 Amir Paz‐Fuchs
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EnricoBonadio and Chen WeiZhu (eds), Music Borrowing and Copyright Law: A Genre‐by‐Genre AnalysisOxford: Hart, 2023, 704pp, hb £126.00 Modern Law Review (IF 1.5) Pub Date : 2024-03-20 Max H. Y. Wong
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Sovereignty and the Persistence of the Aesthetic Modern Law Review (IF 1.5) Pub Date : 2024-03-20 Illan Wall, Daniel Matthews
British constitutional thought tends to understand sovereignty in legalistic terms, with the concept often equated with the doctrine of parliamentary sovereignty. As Loughlin and Tierney have recently argued, this approach obscures the political considerations which undergird the legal precept. In this article we argue that this approach misses a third, and essentially important, dimension to sovereignty
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Rationalising Mid‐Century Choice of Law: Legal Technique and its Limits in the ‘Dark Science’ of Conflicts Modern Law Review (IF 1.5) Pub Date : 2024-03-16 Jacco Bomhoff
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
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The Authority of Constituent Power Modern Law Review (IF 1.5) Pub Date : 2024-03-15 Federico Szczaranski
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
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Intellectual Property Absurdism or: How I Learned to Stop Worrying and Love IP Modern Law Review (IF 1.5) Pub Date : 2024-03-06 Patrick R. Goold
Enrico Bonadio and Aislinn O'Connell, Intellectual Property Excesses: Exploring the Boundaries of IP Protection, Oxford: Hart Publishing, 2022, 336 pp, hb £81.00, pb £40.49
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Vicarious Liability and Conferred Authority: Trustees of the Barry Congregation of Jehovah's Witnesses v BXB Modern Law Review (IF 1.5) Pub Date : 2024-03-01 Christine Beuermann
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
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The Challenge of ‘Factual Hard Cases’ for Guilty Plea Regimes Modern Law Review (IF 1.5) Pub Date : 2024-02-27 Rebecca K. Helm
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
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Plus ça change, plus c'est la même chose: Mackie Motors v RCI and Baird Textiles v Marks and Spencer Modern Law Review (IF 1.5) Pub Date : 2024-02-27 David Campbell
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
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Characterising and Changing Charitable Purposes: Theories of Organisational Purpose Modern Law Review (IF 1.5) Pub Date : 2024-02-13 Ian Murray
The last decade has witnessed material interest in the relevance of organisational purpose to organisational governance for both for-profit corporations and charities. A purpose-focus promises greater clarity for responsible person duties, as well as motivational benefits. However, despite its centrality, the nature of organisational purpose remains under-theorised. This article first explores theoretical
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Redefining Compensation under International Law: the Methodology of the International Court of Justice in DRC v Uganda Modern Law Review (IF 1.5) Pub Date : 2024-02-09 Daniel Brinkman
In February 2022, the International Court of Justice handed down its decision in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) which determined claims against Uganda for its unlawful military activities in the territory of the Democratic Republic of the Congo. The decision is significant for the law of reparations, with the Court adopting a controversial
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Anxieties about International Law: Law Debenture v Ukraine Modern Law Review (IF 1.5) Pub Date : 2024-02-08 Marcus Teo
The idea that international law is received into the common law to some greater or lesser extent persists in contemporary accounts of the English constitution. In The Law Debenture Trust Corporation plc v Ukraine, however, a majority of the Supreme Court held – in circumstances ripe for its reception – that international law had no place in the English common law of duress and contractual defences
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The Citizen as Other: The Case from Within for Cosmopolitan State Duties and Freedom to Migrate Modern Law Review (IF 1.5) Pub Date : 2024-01-31 Francesca Strumia
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
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C v D: A Missed Opportunity to Clarify the Distinction Between Jurisdiction and Admissibility Modern Law Review (IF 1.5) Pub Date : 2024-01-14 Shaun Matos
The distinction between issues of jurisdiction and admissibility is at the heart of arbitration law due to the role it plays in defining the relationship between tribunals and the courts of the seat. Nevertheless, there has long been controversy as to the foundation of the distinction and on which side of the line the issue of alleged non-compliance with pre-arbitration steps falls. C v D offered a
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Has the UK Supreme Court Become More Restrained in Public Law Cases? Modern Law Review (IF 1.5) Pub Date : 2024-01-11 Lewis Graham
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
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The Sins of the Fathers: Targeted Sanctions against Family Members of Primary Targets Modern Law Review (IF 1.5) Pub Date : 2024-01-02 Anton Moiseienko
Targeted sanctions, such as asset freezes and travel bans, are an increasingly popular response to a wide array of wrongdoing. This article considers an especially problematic aspect of contemporary sanctions law and practice that has received little attention so far, namely the imposition of sanctions on the family members of the primary target. In charting out a coherent and principled approach to
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Regulatory Agencies and the Inclusion Trilemma Modern Law Review (IF 1.5) Pub Date : 2023-12-21 Chris Brummer
Regardless of economic cycles, financial regulation can be understood to be bound by an uncomfortable social policy trilemma. When faced with 1) providing market integrity, 2) fostering innovation, and 3) enabling financial inclusion, regulators have long been able to achieve, at best, only two of these three goals. Often the result of this trilemma are choices made in the name of consumer and investor
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The New Responsive Constitutionalism Modern Law Review (IF 1.5) Pub Date : 2023-11-22 Rosalind Dixon
Ideas of responsive law and regulation have been the subject of sustained scholarly attention but only recently have scholars turned their attention to what these ideas mean for constitutional law and governance. The article addresses this gap in the literature by exploring the idea of responsiveness in constitutional design and interpretation. It suggests that the idea of responsive constitutionalism points
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Discrimination at the Interface: The Equality Act 2010 and Platform Interface Design Modern Law Review (IF 1.5) Pub Date : 2023-11-22 Jed Meers
Given their dominance in a range of sectors – from private renting to job search – the design of online platforms can impede access to markets and facilitate discrimination. Most legal scholarship on the equality implications of platform design focuses on algorithms. This paper instead interrogates the comparatively neglected issue of interface design. It argues that two areas of interface design –
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Judicial Biography in the National Security Constitution: Lord Diplock and a ‘Rather Silly Little Secret Racket’ Modern Law Review (IF 1.5) Pub Date : 2023-11-21 Paul F. Scott
This article considers the extra-judicial work of Lord Diplock in the domain of national security in the context of his life and judicial work. It first considers briefly the role of judicial biography in understanding the work of judges and then the particular considerations which apply to such biography in the context of national security law and practice. The following sections consider Lord Diplock's
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CORRIGENDUM Modern Law Review (IF 1.5) Pub Date : 2023-10-24
Corrigendum to Conall Mallory, ‘Rights-Restricting Rhetoric: The Overseas Operations (Service Personnel and Veterans) Act 2021’ (2022) 85 Modern Law Review 461-487. https://doi.org/10.1111/1468-2230.12718 Following the original publication, the author would like to update the sentence on page 468 (line 2) and footnote 44. The sentence should read as follows: ‘The lawyer who had brought that litigation
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The View from the Top: Visual Intrusion as Nuisance in Fearn v Tate Gallery Modern Law Review (IF 1.5) Pub Date : 2023-10-24 Jeevan Hariharan
In Fearn v Board of Trustees of the Tate Gallery the UK Supreme Court unanimously held that visual intrusions are in principle actionable under the tort of private nuisance. On the facts, a narrow 3:2 majority found that the Tate Modern was liable for the operation of its viewing gallery where the public could see into the claimants’ flats. This note argues that the court's landmark determination on
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The View from the Top: Visual Intrusion as Nuisance in Fearn v Tate Gallery Modern Law Review (IF 1.5) Pub Date : 2023-10-24 Jeevan Hariharan
In Fearn v Board of Trustees of the Tate Gallery the UK Supreme Court unanimously held that visual intrusions are in principle actionable under the tort of private nuisance. On the facts, a narrow 3:2 majority found that the Tate Modern was liable for the operation of its viewing gallery where the public could see into the claimants’ flats. This note argues that the court's landmark determination on
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Zalewski and the Future of Irish Public Law Modern Law Review (IF 1.5) Pub Date : 2023-10-19 Tom Hickey
Irish judges have tended to ‘jealously guard’ the judicial power, vested as it is by Article 34.1 of the Constitution in the courts alone. And they have jealously guarded their control over the articulation of public law norms. It is they who get to decide what counts as fair procedure in this or that non-judicial body – not the non-judicial actors operating at the coalface. But in Zalewski v Workplace
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Hauptpersonalrat der Lehrerinnen: Article 88 GDPR and the Interplay between EU and Member State Employee Data Protection Rules Modern Law Review (IF 1.5) Pub Date : 2023-10-19 Halefom H. Abraha
On 30 March 2023, the European Court of Justice ruled for the first time on the interpretation of Article 88 GDPR, which gives Member States the power to provide for more specific rules on employee data processing. In response to a request from the Administrative Court of Wiesbaden (Hauptpersonalrat der Lehrerinnen) concerning the live streaming of video classes, the CJEU found the German law regulating
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Trial by Cognitive Ordeal: Irrational Approaches to the Opinions of Investigators, Trial Integrity and Proof Modern Law Review (IF 1.5) Pub Date : 2023-10-12 Gary Edmond
This article suggests that lawyers and judges may not understand the effects of their rules and procedures upon the production of evidence and its evaluation in criminal trials and appeals. Focusing on case studies involving the opinions of police officers and other investigators, as well as experts, it explains how applicable rules, procedures and safeguards did not produce, and appear incapable of
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Will the New UK Subsidy Control Regime Help ‘Level Up’ the Economy? Modern Law Review (IF 1.5) Pub Date : 2023-10-05 Andreas Stephan
There is an emerging political consensus in the UK that greater devolution of spending powers will bring benefits in terms of reducing economic disparities between regions, enhancing social cohesion, and improving the economy's prospects for productivity, growth and the transition to net zero. The Subsidy Control Act 2022 is thought to be key to achieving this by providing public authorities with greater