This paper examines discretionary decision making in a property law context: the statutory power to correct a mistaken entry on the land register. This discretionary power has importance as an occasion when the allocation of property occurs without fixed rules but is put into the control of the court without guidance on content or goals. The case-law is studied using legal empirical analysis. The judicial approach is described and findings are analysed. The paper relates the conclusions to doctrinal and policy debates in land registration and discusses how the judicial input advances understanding of the registration system as an integrated whole.

Utilitarianism, the view that ‘actions are right in proportion as they tend to promote happiness, wrong as they tend to produce the reverse of happiness’, is no longer taken seriously either as a moral principle or as a theory of tort law. Rights-based theories appear to have won the day. The purpose of this paper is to counter this trend and demonstrate that utilitarianism is not the implausible straw man that its opponents have constructed. Relying upon a version of utilitarianism advanced by the philosopher RM Hare, I will demonstrate that distinguishing between two levels of utilitarian thinking can provide a credible explanatory and normative theory of tort law that is immune to many of the critiques usually levelled at this theory. My final conclusion is that if a rights-based theory of tort law is convincing, it may be one with utilitarian foundations.

The UK Constitution is either theorised as a political constitution that is premised on the Westminster model of government or as a legal constitution that rests on moral principles, which the common law is said to protect. Both models conceive of democracy in procedural terms, and not in normative terms. However, the democratic legitimacy of laws stems from a complex constellation of conditions that no longer involves popular or parliamentary sovereignty alone. In this paper, I break with the traditional account that bases law-making authority on the condition of procedural democracy. Instead, I argue for a normative conception of democracy that conditions parliamentary authority. I show that failure to do so amounts to a glaring omission in certain cases.

This paper sets out the findings of an exploratory study that, drawing on the so-called ‘new sociology of childhood’, has theorised the child as a competent social actor and conjectured that, on this basis, whilst they might lack formal legal capacity, children may nevertheless possess legal capability. Taking a child-first (as opposed to a law-first) approach, the study has sought to assess children's legal understanding using digital gaming as a research tool. We have identified as an area of particular strength children's attitudes to gender equality, and we have determined that many children demonstrate competency to deal with consumer-related issues appropriately. However, at the other extreme, we have established that children demonstrate considerable uncertainty concerning the levels of force that adult authority figures are permitted to exercise over them. We have found in the course of this study that children are competent and willing to express their views on matters that concern them. However, they do not expect to be invited to do this in their day-to-day lives. Related to this we have found a vast lack of awareness among children concerning the rights afforded to them under the United Nations Convention on the Rights of the Child.

The landmark Supreme Court judgment in Prest v Petrodel Resources Ltd provides a significant reassessment of the law relating to a court's ability to circumvent corporate personality. The Supreme Court considered that the application of ordinary legal principles (‘the concealment principle’) should ordinarily override a court's ability to apply an equitable veil-piercing doctrine (‘the evasion principle’). Whilst accepting the primacy of the concealment principle, this paper disputes the correctness of the Supreme Court's implied assertion that, in cases concerning ‘one-man type’ companies, the concealment principle should be advanced through application of agency-derived principles. Rather, this paper contends that the concealment principle should be progressed by adopting solutions derived from the law of constructive trusts and associated principles of equity. To an objective of providing a doctrinally sound framework for the development of the law in the post-Prest era, this paper further suggests that the constituent elements of the evasion principle could be consistent with the operation of a distinct species of constructive trust. Moreover, it is argued that, in future, this ‘evasion trust’ should, in complete abrogation of the equitable piercing doctrine, be developed so as to apply in all cases exhibiting intentional and fraudulent abuses of the incorporation process.

It is frequently assumed that legal transplants can help law makers in choosing the best ideas from elsewhere in the world. However, this paper suggests that there can also be cases of ‘malicious legal transplants’. It explains why such transplants emerge and how they may be prevented. This discussion fills a gap in the normative debate about legal transplants: while it is valuable to identify good models, it is equally important to understand how the impact of malicious ideas can be prevented.

The focus of this paper is upon the educational background of academic lawyers in England and Wales and the extent to which qualifications from certain institutions may be seen as acting as a proxy for social class. In recent years higher educational background and socio-economic background have been significant topics of research relating to entry to the legal professions and judiciary in England and Wales. There is a relative absence of such research relating to academic lawyers. The research discussed in this paper aims to close that gap. The paper argues that critiques relating to the elite nature of the traditional legal professions in terms of educational background have parallels within the academic legal community, evidenced by a dominance of those educated at Cambridge, Oxford and other Russell Group institutions, with relatively lower proportions of graduates from other sectors, most notably the post-1992 universities. The paper further argues that economic hurdles to entry to an academic legal career are significantly higher than those for other law related careers, potentially exacerbating issues of socio-economic exclusion. The conclusion drawn is that law schools should engage proactively with measures to expand opportunities for entrants into the academic legal community from candidates from a much wider range of educational backgrounds.

This paper draws upon the civic republican tradition to offer new conceptual resources for the normative assessment of mental capacity law. The republican conception of liberty as non-domination is used to identify ways in which such laws generate arbitrary power that can underpin relationships of servility and insecurity. It also shows how non-domination provides a basis for critiquing legal tests of decision making that rely upon ‘diagnostic’ rather than ‘functional’ criteria. In response, two main civic republican strategies are recommended for securing freedom in the context of the legal regulation of psychological disability: self-authorisation techniques and participatory shaping of power. The result is a series of proposals for the reform of decisional capacity law, including a transition towards purely functional assessment of decisional capacity, surer legal footing for advanced care planning, and greater control over the design and administration of decision making capacity laws by those with psychological disabilities.

Unlike England and Wales, Ireland has not yet moved from the traditional common law rejection of prenuptial agreements. Nevertheless, similar policy concerns continue to be debated in both jurisdictions, particularly regarding the balance between autonomy and fairness concerns, and gender equity. In 2007, an Irish ministerial Study Group recommended limited recognition of prenuptial agreements, foreshadowing similar proposals by the Law Commission for England and Wales in 2014. However, the Irish recommendations were never implemented, despite sustained lobbying. This paper draws on relational theory to scrutinise the Study Group's proposals, identifying its core assumptions and their implications. The paper contends that Irish courts dealing with spousal agreements have tacitly accepted liberal conceptualisations of autonomy, which may lead to injustice. Furthermore, the Study Group's recommendations have been overtaken by events. Recent decisions on spousal agreements emphasise respect for party autonomy, without interrogating what this means. This could be problematic if applied to prenuptial agreements. Accordingly, the paper suggests modifications to the Study Group's proposals, to address relational concerns. In this regard, the paper speaks to the broader debate on family autonomy, and draws on comparative perspectives, including the recommendations of the Law Commission for England and Wales, and the Canadian experience.