This article examines the implications of the E.C.J.'s decisions in Überseering and Inspire Art against the background of the principal competing theories relating to lex societatis. It considers the tension between freedom of establishment (EC Treaty, arts 43 and 48) and the protective objectives of national corporate law regimes aimed at defeating the so-called Delaware effect. It goes on to argue that significant issues remain unresolved. More particularly, it questions whether creditor protection mechanisms contained in national insolvency laws will, in future, be viewed as obstacles to freedom of establishment.

[A]cts of parliament that are impossible to be performed are of no validity: and if there arise out of them collaterally any absurd consequences, manifestly contradictory to common reason, they are, with regard to those collateral consequences, void. … [W]here some collateral matter arises out of the general words, and happens to be unreasonable; there the judges are in decency to conclude that this consequence was not foreseen by the parliament, and therefore they are at liberty to expound the statute by equity, and only quoad hoc disregard it.

This article suggests that Jeremy Bentham's principle of utility plays a crucial role in his work as a ground not only of moral or censorial judgment but also of expositorial legal judgment. If we are to reject the characterisation of Bentham as a natural lawyer, the most coherent re-interpretation of his position, a morally sceptical interpretation of his insistence on law as a cause of social order, would be as a noble or enlightened despotism, a decision to defend utility as a politically authoritative but philosophically unjustified principle. It concludes that other rationalist legal positivists face similar versions of this dilemma.

This article seeks to analyse the part of interpreting contractual documents that deals with supplementing the (linguistically encoded part of the) contract, and it is argued that the implication of terms in fact is an instance of this interpretation by supplementation. A reason for the strictness of the implication in fact test, as contrasted with the basic objective test of interpretation, is proposed: some information (new terms) is more primary than other information (details added to existing terms), and such primary information is less likely to be intended to go without saying by the contractors. As a result, although implication in fact should be seen as an instance of interpretation, interpretation through supplementation should take account of the primariness of the information by which the contract is being supplemented. To put things another way, the strict officious bystander and business efficacy tests of implication should be seen as at the strict extreme of a continuum of tests of interpretation by supplementation.

At the core of contemporary political, constitutional, and legal theory, lie the questions of how “constitutional”, “fundamental”, and “human” rights are, and should be, reconciled with each other and with considerations of the wider public interest. This article considers how the debate between Habermas and Alexy about the appropriateness of “balancing” as a way of addressing these problems might apply to the adjudication of the European Court of Human Rights, and concludes that, with some modification, Alexy's model is to be preferred.

Most modern writers in restitution assume that that the theory of “implied contract” has somehow been disproved or discredited. Yet the justification for this is weak, and begs important questions about the nature and methodology of “genuine” contract law. This article argues for the continued usefulness of “implied contract”, and applies it as the basis of significant portions of the modern law of restitution.

While considerable attention is devoted to legal scholarship, little has been written on the process by which academic writing on law evolves. This paper departs from the existing pattern and examines five potential trajectories for legal scholarship. One is based on the idea that knowledge “accumulates” as part of “progress” towards a better understanding of the matters under study. The second is the concept of the “paradigm”, derived from work done on the history and sociology of science. The third focuses on the idea that academic endeavour concerning law yields useful ideas since market forces are at work. The fourth is a “cyclical” thesis, based on the assumption that themes legal scholars write about arise on a reoccurring basis. Finally, legal scholarship can potentially be characterised in terms of fads and fashions. It appears that scholarly trends in law develop in a manner that is at least partially consistent with each of the five potential trajectories identified. At the same time, none captures fully the dynamics at work and indeed there is some conflict between the various paths available. The paper tests these conjectures by focusing on a particular topic, namely corporate law. The survey offered does not identify one of the five potential trajectories as being dominant. Still, each does help to explain how corporate law scholarship has developed. Correspondingly, for those who are interested in why some ideas prosper whereas other claims “burn out”, this paper offers a “test-driven” analytical framework that can be applied to discern how academic writing on law evolves over time.

IN the last three decades many acts and regulations have been introduced in Britain to serve the interests of consumers and as a consequence a new branch of law has evolved: consumer protection. These acts concern many aspects of public and private law. Within private law they mainly deal with contract law and the law of restitution. For example, the Consumer Protection (Distance Selling) Regulations 2000 (henceforth CPR 1987), and the Consumer Credit Act 1974 (henceforth CCA 1974) confer a right on the consumer to cancel a contract. This right of cancellation arises in the context of consumer protection. Yet from the perspective of private law it is part of the law of contract. A cancelled contract is treated as if it had not been made and as a consequence each party has to give back what he received under the contract. The contract is unwound. Again, any questions on how to unwind a contract belong only in a contextual sense to the law of consumer protection. On our map of private law they are part of the law of restitution.