As lawyers concerned with the regulation of economic activity, we applaud the recognition in Professor Charles Goodhart's recent Chorley lecture that much of the ‘law and economics’ of the past quarter-century has involved ‘too much one-way traffic’. If the field of law and economics has indeed largely, as Professor Goodhart suggests, consisted of a process of intellectual imperialism, specifically of the colonisation of law by economics, we consider it important to reflect on the reasons for this, and to make some suggestions to improve the collaboration between the two disciplines. In brief, we suggest that this interaction has been bedevilled by its tendency to reproduce the worst aspects of formalism in each discipline.

Professor Goodhart shows that the bulk of law and economics has consisted of a fairly unthinking application of standard neo-classical economic assumptions to legal phenomena which have themselves typically been conceived in conventional doctrinal terms.

The need for certainty about the scope of the court's jurisdiction to interfere with a mortgagee's right to possession of a dwelling house following default by the mortgagor needs little emphasis. Much is at stake, and unless the mortgagor can plead some substantive defence such as undue influence, the mortgagor faces losing what is usually the family home. Until relatively recently, this certainty has existed and the extent of the court's jurisdiction to control or deny a mortgagee's possessory rights has not been in issue, the focus being instead on the narrower question of how the court's recognised powers should be exercised. However, a number of recent decisions, including Cheltenham and Gloucester plc v Krausz; Cheltenham and Gloucester plc v Booker and Bristol & West Building Society v Ellis and Ellis, have prompted more fundamental questions.

It is difficult to capture, even metaphorically, the nature of law as practised in the criminal appellate courts when considering the fundamentals of the subject -the basic principles of mens rea. If law is treated metaphorically as a science, allowing, as Lord Denning suggested, its principles to be revised by the demands of justice, in the way that scientific principles are revised by the demands of experimental data, then there should at least be a coherent development of the subject where identifiable principles of law are matched to a more sophisticated grasp of the requirements of justice.

Of course, such a formal image is less fashionable today than it once was, and a more ‘critical’ perspective of legal materials may be taken. But here, too, we lack a suitable image to convey the current state of the law.

This article describes an empirical study that was undertaken to see whether lawyers possess the statistical and, more particularly, probabilistic understanding that they need for their professional duties. Their earlier training in mathematics might have been expected to provide them with the relevant understanding, but was found to be wanting. The implications for legal decision making are discussed, and recommendations are made for preparing lawyers with the necessary skills.

In 1977, the Council of the European Community unanimously adopted Directive 77/187/EEC on the approximation of laws of the member states relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses, or parts of businesses. The first half of the 1970s had witnessed an ever increasing incidence of business restructuring throughout the territory of the Community. Concern over the possible impact of such structural changes on affected employees prompted the introduction of the Acquired Rights Directive, which, according to its preamble, had the primary purpose of providing ‘for the protection of employees in the event of a change of employer, in particular to ensure that their rights are safeguarded’. In the event that a transfer of an undertaking results in a change of employer, the directive provides for the automatic transfer of the employment relationship from the old employer (the transferor) to the new employer (the transferee).

The word ‘estoppel’ had its origins in the old French word ‘estoup’, meaning plug or stopper. The principle of estoppel by representation of fact operates in a manner which is consistent with those origins. Where a representation of fact is relied upon by a representee, the effect of the estoppel is to stop up the mouth of the representor, and prevent him or her from asserting facts contrary to his or her own representation. The rights of the parties are then determined by reference to the represented or assumed state of affairs. An estoppel by representation of fact can be used defensively, where an action which would otherwise be available to the plaintiff is not available on the assumed state of affairs. It can also be used aggressively, to establish a state of affairs in which a cause of action exists, where that cause of action would not be available on the true state of affairs.

Ownership of the family home is usually not disputed until either the relationship between the spouses or cohabitants breakdown or there is a competing claim over the property by a third party. In such circumstances, determination of ownership rights becomes imperative. The Matrimonial Causes Act 1973 gives the courts adjustive powers to deal with disputes between spouses on the breakdown of the marriage. Notwithstanding this, there may be circumstances where it will be necessary or desirable to determine property rights between spouses. Furthermore, the adjustive powers of the courts are not applicable to cohabitants. Thus, in the absence of legal co-ownership in the family home, cohabitants and spouses who cannot rely on the 1973 Act will have to establish an equitable interest in the property. The analyses relied on are primarily based on property law and trusts principles and, more particularly, imputed trusts and proprietary estoppel. Under trusts principles, imputed trusts are usually taken to refer to resulting and constructive trusts.