-
The Challenges of Designing Sexual Assault Law Curr. Leg. Probl. (IF 1.529) Pub Date : 2024-04-16 Tatjana Hörnle
The paper compares and evaluates newer laws on sexual assault in Germany (2016), Sweden (2018) and Spain (2022). It focuses on the main challenge for law reform in this field: the complexity of consent-based rules. Before drafting new offence descriptions, the variety of models of consent should be analysed and their advantages and disadvantages considered. Lawmakers should also pay attention to situations
-
Responsibly Buying Artificial Intelligence: A ‘Regulatory Hallucination’ Curr. Leg. Probl. (IF 1.529) Pub Date : 2024-04-06 Albert Sanchez-Graells
As part of its ‘pro-innovation’ approach to artificial intelligence (AI), the UK has left public sector AI procurement and deployment to ‘regulation by contract’ based on thin guidance. Borrowing from the description of AI ‘hallucinations’ as plausible but incorrect answers given with high confidence by AI systems, I argue that this is a ‘regulatory hallucination’: an incorrect answer to the challenge
-
Private Equity in Distress and the Incentives of Collateralised Loan Obligations Curr. Leg. Probl. (IF 1.529) Pub Date : 2024-03-29 Sarah Paterson
This article explores the problem that both modern private equity (PE) firms, and collateralised loan obligation (CLO) lenders to PE portfolio companies, have incentives to avoid a formal restructuring of PE portfolio companies in financial distress. The author is concerned that this may lead to negative social costs for suppliers, employees, customers and even government agencies... She explores how
-
Complete and Effective Data Protection Curr. Leg. Probl. (IF 1.529) Pub Date : 2023-10-10 Orla Lynskey
Data protection law is often invoked as the first line of defence against data-related interferences with fundamental rights. As societal activity has increasingly taken on a digital component, the scope of application of the law has expanded. Data protection has been labelled ‘the law of everything’. While this expansion of material scope to absorb the impact of socio-technical changes on human rights
-
The Need for a Criminal Division of the High Court? Curr. Leg. Probl. (IF 1.529) Pub Date : 2023-10-10 David Ormerod
It seems to be assumed by some that ‘crime is easy’. Not the commission of it, nor the securing of ill-gotten gains from it, but the study, practice, and judging of it. In this paper, I challenge what might be a significant consequence of such an assumption—the systemic impacts on the appointment and deployment of High Court judges and the structure of the High Court. I argue that criminal judging
-
Gambling Disorder, Financial Loss and Suicide—A Journey to the ‘Outer Reaches’ of the Common Law Curr. Leg. Probl. (IF 1.529) Pub Date : 2023-07-22 Janet O’Sullivan
Almost as soon as Briggs J opined in Calvert v William Hill Credit Ltd (2008) that ‘recognition of a common law duty to protect a problem gambler from self-inflicted gambling losses involves a journey to the outermost reaches of the tort of negligence, to the realm of the truly exceptional’, the legal and technological context of his dictum utterly transformed. The liberalising regime of the Gambling
-
‘Not Time to Make a Change’? Reviewing the Rhetoric of Law Reform Curr. Leg. Probl. (IF 1.529) Pub Date : 2023-06-09 James Lee
How do we talk about changing the law? This article considers the rhetoric of law reform and what it can tell us about the current relationships between key institutions involved in the relevant processes. A key claim is that the rhetoric deployed in formulating proposals can complicate the fate of law reform projects as they develop. Several examples from private and criminal law are used to support
-
Existential Ethics: Thinking Hard About Lawyer Responsibility for Clients’ Environmental Harms Curr. Leg. Probl. (IF 1.529) Pub Date : 2023-06-02 Steven Vaughan
This paper challenges the conventional understanding among many legal ethicists that environmental harm can be a necessary, if regrettable, collateral effect of lawyerly work. It argues that lawyers sometimes do things that cost society too much and that legal ethics (being the rules of ethical conduct set out by regulators of lawyers and broader theories of ‘good’ lawyering) has the potential to act
-
The Privatisation of Private (and) International Law Curr. Leg. Probl. (IF 1.529) Pub Date : 2023-03-21 Alex Mills
Privatisation is much studied and debated as a general phenomenon, including in relation to its legal effects and the challenges it presents to the boundaries of public and private law. Outside the criminal context there has however been relatively limited focus on privatisation of the governmental functions which are perhaps of most interest to lawyers—law making, law enforcement and dispute resolution—or
-
The Thinkery and the Academy: Examining the Legal Parameters and Interactions of Academic Freedom and Freedom of Expression Under English Law Curr. Leg. Probl. (IF 1.529) Pub Date : 2023-02-24 James Murray
This paper examines how the right to free expression and academic freedom interact under English and international law, discusses how those two rights have traditionally been thought to interact, and considers how they can be brought together with the concept of academic free expression. In doing so, the article examines the legal parameters and key characteristics of academic free expression, namely:
-
Against Normative Damages Curr. Leg. Probl. (IF 1.529) Pub Date : 2023-02-16 Eric Descheemaeker
This paper examines an idea which has made some headway into legal scholarship and case law, namely, that the violation of a right ought to sound in substantial (compensatory) damages in and by itself, independently of any factual loss caused to the claimant. This doctrine of ‘normative damages’ was rejected, rightly, by the High Court of Australia in the wrongful imprisonment case of Lewis v. ACT
-
Willed Ignorance: Reflections on academic free speech, occasioned by the David Miller case Curr. Leg. Probl. (IF 1.529) Pub Date : 2022-05-31 Anthony Julius
The David Miller case raises the question, does liberal free speech doctrine require academics to defend the antisemitic conspiracy-talk of a sociology professor? The article opens with a discussion of Louise Glück's poem ‘A Myth of Innocence’, and then proceeds towards an answer to this question, pausing to address details of the Miller case itself when the general argument requires it to do so.
-
Corrigendum to: Group Companies and Climate Justice Curr. Leg. Probl. (IF 1.529) Pub Date : 2021-12-20 Benjamin L.
Current Legal Problems, Vol. 00 (2021), pp. 1–33 https://doi.org/10.1093/clp/cuab007
-
Corrigendum to: From Parker to the Australia Acts: Sir Victor Windeyer and the Short-Lived Triumph of the Independent Australian Britons Curr. Leg. Probl. (IF 1.529) Pub Date : 2021-12-03 Lunney M.
Current Legal Problems, 2021, https://doi.org/10.1093/clp/cuab002
-
On Constitutionalism and Women’s Citizenship Curr. Leg. Probl. (IF 1.529) Pub Date : 2021-10-26 Ruth Rubio-Marín
This article is an attempt to explain the forms in which constitutionalism has facilitated or hindered women’s equal citizenship throughout history and with a particular emphasis on Western constitutionalism, especially the US and continental Europe, but also with an eye on new constitutionalism and its innovations. In so doing, the article takes into account not only women’s access to the rights first
-
Safeguarding Freedom? Liberty Protection Safeguards, Social Justice and the Rule of Law Curr. Leg. Probl. (IF 1.529) Pub Date : 2021-10-06 Rosie Harding
The issue of when and how disabled people can be lawfully deprived of their liberty is a major contemporary challenge for mental capacity law. People who lack capacity to consent to treatment that deprives them of their liberty must have access to safeguards to protect their rights under Article 5 ECHR. The current Deprivation of Liberty Safeguards are widely considered to be unfit for purpose, and
-
Legislation and the Stress of Environmental Problems Curr. Leg. Probl. (IF 1.529) Pub Date : 2021-10-05 Eloise Scotford
For lawyers and legal scholars, legislation seems a known quantity—a relatively permanent, public expression of democratic processes in parliamentary democracies and of the rule of law. This ‘knowable’ character can however be misleading, particularly in the field of environmental law. This article examines why research into environmental legislation is challenging but critically important. A short
-
Structural Racism and Race Discrimination Curr. Leg. Probl. (IF 1.529) Pub Date : 2021-09-30 Shreya Atrey
What is the relationship between ‘racism’ and ‘race discrimination’? The paper explores this question. It shows that once we look beyond racism understood colloquially as individual bigotry, to racism understood in a structural sense as embedded in the social, economic, cultural and political dimensions of the State itself, it is possible to locate racism in the practice of discrimination law, within
-
The Dynamics of International Law Redux Curr. Leg. Probl. (IF 1.529) Pub Date : 2021-09-20 Nico Krisch
Law is constantly caught between stasis and dynamism, between the production of legal certainty and the adaptation to a changing environment. The tension between both is particularly acute in international law, given the absence of legislative mechanisms on the international level and the high doctrinal thresholds for change through treaties or customary law. Despite this apparent tendency towards
-
Group Companies and Climate Justice Curr. Leg. Probl. (IF 1.529) Pub Date : 2021-09-17 Lisa Benjamin
A string of corporate litigation cases in the United Kingdom highlights the role of corporate group structures in complicating efforts to impose liability on parent companies for the activities of their subsidiaries, particularly where those subsidiaries are located in the Global South. Corporate group structures serve to insulate parent companies against liability for actions of their subsidiaries
-
Did Brexit Change EU Law? Curr. Leg. Probl. (IF 1.529) Pub Date : 2021-09-17 Niamh Nic Shuibhne
This paper investigates whether the withdrawal of the United Kingdom from the European Union changed EU law. Brexit necessarily animated the law related to and produced by Article 50 TEU. Did it also imprint on fundamental premises of EU law that will continue to shape relations between the Member States and the Union, and between the Union and the wider world? These questions are examined through
-
The Past, Present, and Future of Online Dispute Resolution Curr. Leg. Probl. (IF 1.529) Pub Date : 2021-09-08 Orna Rabinovich-Einy
This article chronicles the evolution of the field of online dispute resolution from its inception in the mid-1990s to its current application in and outside the court system. While originally ODR played a modest role in the limited domain of e-commerce, over the years its application has expanded significantly, as have its form and function: from processes that have sought to replicate online equivalents
-
From Parker to the Australia Acts: Sir Victor Windeyer and the Short-Lived Triumph of the Independent Australian Britons Curr. Leg. Probl. (IF 1.529) Pub Date : 2021-08-01 Mark Lunney
-
What Might (Finally) Kill the Jus ad Bellum? Curr. Leg. Probl. (IF 1.529) Pub Date : 2021-07-12 Monica Hakimi
There is a long tradition of international relations and legal scholars warning of the demise of the jus ad bellum—the body of international law that governs when states may use force across national borders. I argue in this Lecture, presented at The University College London Faculty of Laws in October 2020, that these warnings have mostly been wrong. The reason they have been wrong is that they have
-
The Mental Element in Equitable Accessory Liability Curr. Leg. Probl. (IF 1.529) Pub Date : 2021-04-29 Lusina Ho
There has been heated debate over the test of dishonesty since it was first laid down in Royal Brunei Airlines v Tan. This paper argues that the essence of ‘dishonest’ assistance is willing participation in a breach of trust, that is, assistants endorse or accept their causal role in bringing it about. Three implications follow. First, the mental element should be fixed at the minimum level necessary
-
Preface Curr. Leg. Probl. (IF 1.529) Pub Date : 2021-01-11 Kotiswaran P.
We do not ordinarily feel the need to include a preface to Current Legal Problems. However, we thought that readers might find it helpful if we offered a brief explanation of how the Covid-19 pandemic has affected the journal.
-
The State Theory of Grotius Curr. Leg. Probl. (IF 1.529) Pub Date : 2021-01-09 Nehal Bhuta
This article argues that Grotius has a modern theory of the state that can take its place alongside Bodin and Hobbes as one of the ways in which early modern civil philosophy sought to solve the problem of the authority and validity of political order. This is interesting because Grotius’s account of the state draws a picture of the relationship between political and legal ordering, and history, in
-
Political Parties in Constitutional Theory Curr. Leg. Probl. (IF 1.529) Pub Date : 2020-12-12 Tarunabh Khaitan
Political parties appear to be in crisis. The recent wave of democratic deconsolidation in several established democracies has been accompanied by the collapse, authoritarian takeover, or external capture of mainstream political parties, the partisan capture of state institutions, and a rise in hyper-nationalistic and exclusionary partisan rhetoric.1 While political parties have long been a central
-
Future Trade Relations between Canada and the United Kingdom Curr. Leg. Probl. (IF 1.529) Pub Date : 2020-11-04 Armand de Mestral C.
AbstractCanada’s trade relations with the UK have been governed by the CETA since the signature of that agreement with the EU in October 2016. Subsequent to the decision of the UK electorate to leave the EU, it became necessary to envisage the creation of a new trade agreement directly between the UK and Canada. Initially, the Government of Canada indicated a willingness to negotiate a new trade agreement
-
Structural Injustice and the Human Rights of Workers Curr. Leg. Probl. (IF 1.529) Pub Date : 2020-10-06 Virginia Mantouvalou
An increasing number of jobs are precarious, making workers vulnerable to various forms of ill-treatment and exploitation. The UK Government’s main approach has been to criminalise the actions of unscrupulous employers who seek to exploit these. This approach, however, has been ineffective, partly because it ignores the broader socio-economic structures that place workers in conditions of vulnerability
-
The Value of Communication Practices for Comparative Law: Exploring the Relationship Between Scotland and England Curr. Leg. Probl. (IF 1.529) Pub Date : 2019-10-30 Braun A.
AbstractThis article explores the relationship between the Scottish and the English legal traditions through the lens of communication practices. ‘Communication practices’ are conceived of as the multiple ways in which legal traditions interact with one another by a combination of the circulation of legal ideas and the activities of legal actors. The article argues that greater attention should be
-
Why Colonialism Is Wrong Curr. Leg. Probl. (IF 1.529) Pub Date : 2019-10-30 Renzo M.
AbstractHistorically, colonial domination has involved subjecting innocent populations to atrocities such as murder, torture, and exploitation. But pointing at these wrongs is not enough to explain the distinctive way in which colonialism is wrong. After all, murder, torture and exploitation are wrong whether or not they occur in the context of colonial occupation. If all we can do to explain the nature
-
Bad Bargains Curr. Leg. Probl. (IF 1.529) Pub Date : 2019-10-23 Davies P.
AbstractIt is often said that the courts will not save parties from bad bargains: as Lord Nottingham observed, even ‘the Chancery mends no man's bargain’. This article considers what is meant by ‘bad bargain’, and argues that courts should be reluctant to develop the law in a way which would allow sophisticated commercial actors to escape bad bargains. This analysis is timely since in the current economic
-
The History of Foreseeability Curr. Leg. Probl. (IF 1.529) Pub Date : 2019-10-19 Scott H.
AbstractThe factual component of the duty of care inquiry—that harm to the claimant as a result of the defendant’s conduct was reasonably foreseeable by the defendant—has been entrenched in English law since Donoghue v Stevenson. Both indigenous and comparative (specifically South African) evidence suggests that Lord Atkin’s formulation of the duty of care test was influenced by a particular fragment
-
The Territorial Constitution and the Brexit Process Curr. Leg. Probl. (IF 1.529) Pub Date : 2019-10-15 Tierney S.
AbstractThis article assesses the United Kingdom’s rapidly evolving territorial constitution through the register of federal theory. While not arguing that the UK is federal or ought to be described as federal, the article contends that federalism is a useful prism through which to assess how well the UK’s constitution accommodates autonomy on the one hand and the efficacy of union, which is the essential
-
The Transnational Counter-Terrorism Order: A Problématique Curr. Leg. Probl. (IF 1.529) Pub Date : 2019-09-17 de Londras F.
AbstractWe live our lives in an often-unseen transnational counter-terrorism order. For almost two decades now, counter-terrorist hegemons have been acting on multiple transnational levels, using a mixture of legal, institutional, technical and political manoeuvres to develop laws, policies and practices of counter-terrorism that undervalue rights, exclude civil society, limit dissent and disagreement
-
Assumption of Responsibility: Four Questions Curr. Leg. Probl. (IF 1.529) Pub Date : 2019-07-13 Nolan D.
AbstractAlthough the assumption of responsibility concept pervades the English law of negligence, its meaning remains hazy and its significance contested. While the courts employ the language of assumption of responsibility on a regular basis, no clear judicial definition of it has emerged. And commentators are divided as to whether assumption of responsibility is a distinct ground on which liability
-
Trafficking: A Development Approach Curr. Leg. Probl. (IF 1.529) Pub Date : 2019-01-01 Prabha Kotiswaran
Almost twenty years since the adoption of the Palermo Protocol on Trafficking, anti-trafficking law and discourse continue to be in a state of tremendous flux and dynamic evolution. While the efficacy of using criminal law to tackle an irreducibly socioeconomic problem of labour exploitation was always suspect, scholars and activists alike sought to remedy the excesses of a criminal justice approach
-
The Democratic Case for a Written Constitution Curr. Leg. Probl. (IF 1.529) Pub Date : 2019-01-01 Jeff King
Written constitutions have often been viewed as a bridle for unchecked political majoritarianism, as a restraint on government, and hence as a limiting device rather than form of democratic political expression. Breaking with that tradition, this article sets out a democratic case for a written constitution and contrasts it with the rights-based and clarity-based cases. It then proceeds to show why
-
When Law is Good for Your Health: Mitigating the Social Determinants of Health through Access to Justice Curr. Leg. Probl. (IF 1.529) Pub Date : 2019-01-01 Hazel Genn
Access to justice research over two decades has documented the health-harming effects of unmet legal needs. There is growing evidence of bidirectional links between law and health demonstrating that social problems with a legal dimension can exacerbate or create ill health and, conversely that ill-health can create legal problems. Independently, social epidemiological research documents gross and widening
-
The Legal Framework for UK Aid After Brexit Curr. Leg. Probl. (IF 1.529) Pub Date : 2019-01-01 Ambreena Manji
Since 2015, when the UK legislated a target for aid spending, the nature of its spending on official development assistance has changed significantly. Government departments not traditionally associated with spending aid have found themselves in charge of disbursing aid funds as a result of that year’s spending review. The vote to exit the European Union has subsequently introduced a number of uncertainties
-
The Rule of—and not by any—Law. On Constitutionalism Curr. Leg. Probl. (IF 1.529) Pub Date : 2018-01-01 Susanne Baer
-
Hate Speech Online: an (Intractable) Contemporary Challenge? Curr. Leg. Probl. (IF 1.529) Pub Date : 2018-01-01 Catherine O’Regan
-
-
Thirty Years of Ultra Vires: Local Authorities, National Courts and the Global Derivatives Markets Curr. Leg. Probl. (IF 1.529) Pub Date : 2018-01-01 Jo Braithwaite
-
Making and Shaping the Law of Armed Conflict Curr. Leg. Probl. (IF 1.529) Pub Date : 2018-01-01 Sandesh Sivakumaran
-
Towards a New Relationship Between Trade Mark Law and Psychology Curr. Leg. Probl. (IF 1.529) Pub Date : 2018-01-01 Robert Burrell, Kimberlee Weatherall
Trade mark law and cognitive psychology are both concerned with establishing the mental states of consumers: in theory then we might expect these disciplines to have a close relationship, and to be engaged in ongoing dialogue. This is not the case and on further examination, real difficulties emerge, especially arising from trade mark law’s registration system. It is not simple to reconcile the goals
-
Humanity in Tort: Does Personality Affect Personal Injury Litigation? Curr. Leg. Probl. (IF 1.529) Pub Date : 2018-01-01 Richard Lewis
This article examines whether the character of people involved in personal injury claims affects their outcome irrespective of the legal rules. For example, does the personality or background of the litigants or their lawyers influence whether an action succeeds and how much damages are then paid? A rise in the number of claims is noted here as part of a contested ‘compensation culture’ in personal
-
Proportionality as Fittingness: The Moral Dimension of Proportionality* Curr. Leg. Probl. (IF 1.529) Pub Date : 2018-01-01 George Letsas
Outside law we often judge an action to be wrongful in virtue of being disproportionate. This paper aims to develop a moral account of proportionality as it figures outside law, with a view to shed light on legal doctrines that employ proportionality reasoning. The understanding of proportionality as a balancing act between harms and goods, popular amongst lawyers, lacks a moral dimension capable of
-
Polycentric Competition Law Curr. Leg. Probl. (IF 1.529) Pub Date : 2018-01-01 Ioannis Lianos
In a world marked by financial instability, limited growth, rising inequality, deteriorating environment, growing corporate consolidation, and political turmoil, calls are made to shift the dominant competition law paradigm towards new directions. These may bring competition law beyond its usual comfort zone of assessing business, or government, practices from the point of view of their effect on prices
-
An Institutional Theory of Corporate Regulation Curr. Leg. Probl. (IF 1.529) Pub Date : 2018-01-01 Iris H-Y Chiu
The regulation of corporate behaviour has persisted in spite of peaks of neo-liberalism in many developed jurisdictions of the world, including the UK. This paradox is described as ‘regulatory capitalism’ by a number of scholars. Of particular note is the proliferation of corporate regulation to govern ‘socially responsible’ behaviour in recent legislative reforms in the EU and UK. In seeking to answer
-
Taking Flight—Domestic Violence and Child Abduction Curr. Leg. Probl. (IF 1.529) Pub Date : 2017-01-01 Brenda Hale
-
For Helen Reece, in memoriam Curr. Leg. Probl. (IF 1.529) Pub Date : 2017-01-01 Jeff King,Paul Mitchell,Kimberley Trapp
-
Illegality after Patel v Mirza Curr. Leg. Probl. (IF 1.529) Pub Date : 2017-01-01 Andrew Burrows
English law on illegality in private law (eg illegal contracts) has long been regarded as both difficult and unsatisfactory. In 2016, the Supreme Court, sitting as a panel of nine, looked at the area again in Patel v Mirza. Here £620,000 had been paid for the defendant to bet on share prices using inside information (which, if carried out, would constitute the crime of insider dealing). The agreement
-
Changing Values and Growing Expectations: The Evolution of Capacity Law Curr. Leg. Probl. (IF 1.529) Pub Date : 2017-01-01 Mary Donnelly
-
Foucault’s Pendulum: Text, Context and Good Faith in Contract Law Curr. Leg. Probl. (IF 1.529) Pub Date : 2017-01-01 Gerard McMeel
-
Hospitality, Tolerance, and Exclusion in Legal Form: Private International Law and the Politics of Difference Curr. Leg. Probl. (IF 1.529) Pub Date : 2017-01-01 Horatia Muir Watt
-
Has Montgomery Administered the Last Rites to Therapeutic Privilege? A Diagnosis and a Prognosis Curr. Leg. Probl. (IF 1.529) Pub Date : 2017-01-01 Rachael Mulheron
-
Massively Discretionary Trusts Curr. Leg. Probl. (IF 1.529) Pub Date : 2017-01-01 Lionel Smith
Trust drafting practices have changed dramatically in recent decades. A range of considerations has led to an increase in the dispositive discretions held by trustees. In some cases, the trustees’ dispositive discretions effectively govern the whole trust structure, leading to what the author calls a ‘massively discretionary trust’. These trusts create a series of legal risks. These include the possibility
-
Patient No Longer? What Next in Healthcare Law? Curr. Leg. Probl. (IF 1.529) Pub Date : 2017-01-01 Jonathan Montgomery
A series of Supreme Court decisions since 2013 have revisited the fundamental principles of healthcare and medical law established during the 1980s in which the Bolam test became pre-eminent. These decisions represent a watershed and suggest that a reorientation is underway, in which the law is reducing the significance of the status of patients in favour of greater recognition of the human rights