The preliminary ruling by the European Court of Justice in the Seymour-Smith and Perez case about the scope and meaning of indirect discrimination has done little to clarify this perplexing concept. The ruling does not tell the thousands of short-service employees whose claims were stayed pending the litigation whether the qualifying period of two years’ continuous service for the right not to be unfairly dismissed is contrary to Community law. Nor does it provide clear standards by which disparate impact is to be tested, nor the relevant time for assessing the legality of an allegedly discriminatory measure, nor the conditions for establishing objective justification. More generally, these proceedings under Article 177 (now Article 234) of the EC Treaty reveal a failure by the Court to perform its function of facilitating the national court in interpreting and applying Community equality law in a way which would be consistent and uniform throughout the Union.

All government is a conspiracy. Each governmental conspiracy has a constitution as its alibi. The constitution describes the way in which the political power of the society is concentrated and places the source of that concentration somewhere other than in the mere fact of power. Because of that dislocation, the constitution is the source not only of political power but also of political duty. The subjection of the organs of government to the constitution runs parallel to the subjection of the people governed to the constitutional power of the organs of government. The constitution justifies constitutional power and constitutional duty by making both of them derivatives from one and the same source.

The prior question of whence the constitution itself derives its authority is, for all everyday practical purposes, answered by the mere fact of the constitution. The constitution is self-proving in practice because it is used as the source of maxims affecting the behaviour of those who exercise physical force with actual impunity, or who control its exercise. To preach or to act against the constitution may or may not be permitted by the legal rules of the given society (themselves derived ultimately from the constitution), but it will in any event be ineffective whenever it comes into collision with power exercised, to the point of physical force, under authority derived from the constitution. A revolution occurs when the exercise of constitutional power, to the piont of physical force, ceases or is overridden by the exercise of unconstitutional power, if necessary by the application of greater physical force.

DURING the 19th century American law (as, indeed, English law) was open to foreign influences. Foreign creativity was welcomed, not seen as an attempt to interfere with American values and life by telling them how to ordain their affairs. English statutes, mainly on matters of private law, would thus reach the westward expanding United States with a jet lag of anything between 10 and 20 years. Decisions of the highest English courts would also be followed, within about the same period of time, unless local conditions made their adoption undesirable. Occasionally and increasingly local courts also developed the courage to challenge the wisdom of the progenitor system, displaying not only growing intellectual confidence in their own, but also showing the flexibility that is found in societies which have the mixed blessing of a shorter tradition; but when they did so, they invariably felt the need to explain why they chose to go down another path. The reasons given for distinguishing or rejecting the parent model were often informative about both systems. American courts were thus among the first which would allude openly to the policy reasons which dictated their results.

This article focuses on a particular aspect of the operation of proprietary estoppel: it asks when a proprietary estoppel claim will give rise to a property right. The inquiry proceeds on the linked assumptions that proprietary estoppel is a means of acquiring rights and that rights thereby arising take effect immediately, without the need for any court order. Like any other means of acquiring rights, proprietary estoppel can give rise either to personal rights or to property rights: in some cases the estoppel claimant is acknowledged to have a personal right (e.g. to damages or a licence to use land); in others a property right (e.g. a lien; an easement; a lease; or a freehold). The central argument of this article is that proprietary estoppel should give rise to a property right only if that is necessary to protect the claimant’s reasonable reliance. Where a personal right gives sufficient protection that will have to do, whatever the claimant may have been promised or expected; this may well mean that the circumstances in which a property right arises are more narrow than has been thought.

Stephen J. once said that the drafting of a statute should aim at a degree of precision which a person reading in bad faith cannot misunderstand; and it is all the better if he cannot pretend to misunderstand it. The decision of the Appellate Committee of the House of Lords in Anderton v. Ryanshows how difficult, if not impossible, it is to achieve these objectives.

The corporate director is subject to duties of good faith and loyalty. As he stands in a fiduciary position vis-à-vis the company on whose board he sits, he is subject to strict obligations of self-denial. Indeed, ensuring adherence to an absolute rule in this regard is justified by the need to control, albeit in a necessarily imperfect and arguably ineffective manner, the exercise of discretion by the director who stands in an undoubted position of power with respect to the company. A director therefore is obliged to avoid a conflict of interests and is prohibited from profiting from his office. What then of the erstwhile director?

This article attempts to explain the meaning of the term “constructive trustee” and to understand why allegations of personal liability on the part of third parties to trusts are pleaded in the language of constructive trusteeship. The author concludes that the language of constructive trusteeship is dictated by the structure and historical context of the trust. Although this terminology could usefully be abandoned, an understanding of its origins suggests that as a matter of linguistic logic there is no room for third party liability which is somehow different from liability “as a constructive trustee.”

It is forty years since Professor Newark wrote despairingly of nuisance that “the subject as commonly taught comprises a mass of material which proves so intractable to definition and analysis that it immediately betrays its mongrel origins.” The “truest dictum in the books” was that of Erle C.J., who had once said in answer to the question, what is a nuisance?, that it was “immersed in undefined uncertainty.” Little has changed since 1949. Public and private nuisance still face life together in the textbooks, the universities and the law reports, despite the convincing evidence all round, much of it gathered in Newark's article, that they have little in common except the accident of sharing the same name. Making hoax bomb calls, obstructing the highway and holding a badly organised pop festival are as vulnerable to a public nuisance action as are the more traditional occurrences of special damage from atmospheric, water and noise pollution. Private nuisance has, if anything, become even more confused and confusing. Its chapter lies neglected in the standard works, little changed over the years, its modest message overwhelmed by the excitements to be found elsewhere in tort. Any sense of direction which may have existed in the old days is long gone. The action now encompasses not only smelly oil depots, noisy speedboats and the like but also dangerous natural hazards on the land and the only slightly less natural “user of premises for prostitution and the perambulations of the prostitutes and their customers.” Sometimes negligence is essential to liability, sometimes it is quite irrelevant.

In Gencor v. Commission (Case T-102/96, judgment of 25 March 1999, not yet reported) the Court of First Instance of the European Communities favoured a bold construction of the jurisdiction of the Commission and of the concept of joint dominance in merger cases. The judgment is also likely to have implications beyond the context of mergers for the use of Article 82 EC to control oligopolies. The case concerned the proposed merger of the platinum and rhodium operations of Gencor, a South African company, and of Lonrho, a company incorporated under English law. In particular, Gencor and Lonrho sought to acquire joint control of Implats, the South African company that brought together Gencor's activities in the platinum and rhodium sector, and through Implats, of the two South African companies that brought together Lonrho's activities in the same sector. The arrangements were notified to the South African competition authorities and to the EC Commission. The South African authorities did not oppose the merger. The Commission, however, issued a decision (Commission Decision 97/26/EC (O.J. 1997 L 11/30)) pursuant to the EC Merger Regulation (Council Regulation 4064/89 (O.J. [1989] L 395/1)) declaring that the proposed concentration was incompatible with the Common Market because it would lead to the creation of a collective dominant position between the entity arising from the concentration and Amplats, the leading world-wide supplier of platinum metal. Gencor challenged the decision of the Commission before the Court of First Instance.

The aim of this article is to consider the relations of nuisance as a tort to three other branches of the law of tort:

(1) The rule in Rylands v. Fletcher.

(2) Negligence.

(3) Trespass to land.

The purpose of this article is to discuss problems of the origin and of the structure of bonae fidei iudicia (formulae), and to consider some of the attempts that have been made to resolve these problems. This will necessitate inquiry into the origins of the formulary system of procedure itself. In the early history of Roman civil procedure there is much that remains uncertain or obscure, and the inquirer must often be content with solutions which, on the evidence, are no more than probable. Yet research continues to map out the terrain, and the map is gradually acquiring more reliability as well as more detail.

On 30 April 1982, after almost a decade of careful negotiations at the Third U.N. Conference on the Law of the Sea, the Law of the Sea Convention was adopted by the positive votes of 130 States. In one of its main sections, Part XI, the Convention sets out a detailed regime for the exploration and exploitation of the deep seabed and its resources and firmly places deep seabed mining under the regulatory control of the International Seabed Authority, to be established in Jamaica. However, as is well known, the United States and certain other Western countries have adopted a negative posture towards various aspects of Part XI and, for this reason, they are unlikely to ratify the 1982 Convention in the near future. Against this background, the question whether the provisions in Part XI may be binding even vis-à-vis non-parties to the LOSC has assumed considerable importance in contemporary international law.

THE public domain is all the rage. It is invoked to breach copyright’s encroaching enclosure of what one might grandiloquently call the cultural commons of the mind. The heralds of our “remix culture” deploy the public domain to smash that icon of the entertainment–industrial complex, the Romantic Author. But even before the Author became Romantic, he still served as a shill for concentrated industry, then the printing–bookselling complex. Authors’ moral claims of labourious entitlement merely masked the power grab of the printers. If we speak of a grab, we imply that copyright was seised from somewhere. So whence, in this account, was copyright wrested? From the public domain.

The period from about 1300 to 1628 witnessed the beginnings of martial law, the establishment of custom governing the situations in which it might be invoked, then a break with that custom followed by a period of widened application, and finally, a reaction, once again restricting the Crown's use of martial law. Although extended, this period needs to be understood as a coherent whole, what might be termed, the first chapter in the history of martial law in England.

THE recent judgment of the Court of Justice of the European Union in the case of Dano (ECLI:EU:C:2014:2358) clarified some important points as regards access to social welfare benefits by EU citizens who move to another Member State. Furthermore, the judgment could have broad implications for any attempts by the UK Government to renegotiate the UK's membership of the EU, which is likely to focus on benefits for EU citizens coming to the UK. This note is an updated and expanded version of my analysis on the EU Law Analysis blog: http://eulawanalysis.blogspot.co.uk/2014/11/benefit-tourism-by-eu-citizens-cjeu.html.

Prosecutions for the crime of blasphemy are rare. But one which took place recently in London has elicited from the Home Secretary an utterance which is of interest and of importance.

Wherever there exists any kind of administration of justice, people will soon realize that a man who makes, or receives, a declaration has to be very careful if he wants to be quite sure of its ultimate legal effect; and the same, of course, is true of all manner of legal business. A man may believe that the promise he is giving has one meaning, but later be told by the judge that it has another; or he may enter into an agreement on the assumption of the existence of certain facts, which afterwards turn out not to be as assumed. There are many ways in which such a discrepancy between verba and voluntas, or letter and spirit, or act and intent, can come about; and a not infrequent one seems to be that the two parties to a contract wish to cheat one another. Very naturally, the temptation to take advantage of a person's lack of forethought must be particularly great in an age when it is permissible to interpret the words of an agreement in a strict and narrow fashion, and when a formal undertaking is considered valid no matter by what trickery you have been led to give it. The Spartan king, Cleomenes, concluded a truce with Argos for thirty days; but he broke it by night, the truce having been made for thirty days. Q. Fabius Labeo, for the Roman senate, arbitrated a boundary dispute between Nola and Naples. He interviewed the parties separately, appealed to their generosity and induced them to make substantial concessions. In the end, there was a large strip of territory left between Nola and Naples, which Labeo awarded to Rome. By the time of Cicero, both these cases were regarded as cases of fraud and as illustrating the maxim summum ius summa iniuria. The history in Roman law of the problem of verba and voluntas has been the subject of much discussion during the past few years. I may, perhaps, be forgiven for drawing attention to a Biblical narrative which is dominated by this problem, though the commentators do not appear to have noticed it. It is the story of the sale of his birthright by Esau.