This paper examines the diverse responses of the German states to the Code Napoleon at the beginning of the nineteenth century. These states differed both in the extent to which they adopted the Code, and the extent to which they retained the Code after Napoleon's influence waned. In order to identify the causes of adoption and retention of the Code, we use fuzzy-set qualitative comparative analysis (fsQCA). This method is now well established in comparative research in the social sciences but has been little used in comparative legal analysis. We find the following to be among the conditions relevant to the reception of the Code: territorial diversity, control by Napoleon, central state institutions, a feudal economy and society, liberal (enlightented absolutist) rule, nativism among the governing elites and popular anti-French sentiment. The paper also serves to demonstrate the potential of fsQCA as a method for comparative lawyers.

The purpose of this paper is to consider how leading scholars are interpreting the role and status of the core tenets of legal scholarship in England and Australia – the tenets that have provided an element of unity in legal scholarship over the past century or so. Instead of focusing on the way that scholarship has diversified and expanded, the paper considers whether elements of the prior orthodoxy have remained: do the tenets persist, what status are they afforded and what impact will their presence have on the future identity of the discipline and its conception of law? The paper captures insights into the way that scholars – as opposed to administrators or managers – are interpreting changes in the discipline. It is based on the premise that scholarly attitudes can shape the discipline and that therefore such attitudes are worthy of study.

Writing in the introduction to his new treatise on contract in 1826, Joseph Chitty observed that ‘Perhaps no branch of the jurisprudence of this country has of late years been more subject of judicial inquiry and decision than the Law of Contracts’. It is generally accepted that the so-called classical model of contract law, which remains influential into the present day, was created at this time. Ever since the subject first attracted sustained attention from legal historians in the 1970s, the driving forces of these developments have been contested. Some saw legal change as a product of economic and social factors. For others the reception of new ways of thinking and legal literature provided a more convincing explanation. What is not usually disputed is that there was a fundamental revolution in contract doctrine and literature in the nineteenth century. This assumption is open to challenge. It fails to give proper weight to the past. In fact these changes were deeply rooted in the eighteenth century and even earlier.

This paper considers the principle that it is sufficient to establish causation in fact in tort to show that the defendant's act or omission made a material contribution to the harm. It examines the leading case, Bonnington Castings v Wardlaw, and other authorities and argues that the principle involves an application of the but-for test and not an exception to it. If exceptions to the but-for test are to be made, they should be clearly articulated and justified, as, for example, in Fairchild. A broad interpretation of ‘material contribution’ as establishing in some cases such an exception provides insufficient clarity and is certainly to be supported.

The usual excuse for regulation is the failure of market provision. This paper examines legal services and suggests that, in the case of provision of commercial legal services to corporate clients, true events of market failure, to support the case for regulation, and more particularly self-regulation, are hard to locate. It further argues that the market for legal services is heavily stratified with a commercial legal services market effectively operating quite separately to that of professional legal services for private clients. In consequence, it may be more effective and proportionate to adopt differentiated strategies of regulation. This might be achieved by shifting the focus of regulation away from the individual practitioner, as is historically the case, towards law firms as such. This simple step, it is suggested, could facilitate much greater liberalisation of the market for legal services. This proposal is explored with particular reference to freedom of services within the European single market and, as a backdrop to the paper, progress to date in facilitating cross-border legal services in Europe is reviewed.

International law, as expressed in treaties and in customary law, is of growing importance in municipal jurisdictions throughout the world. Some barriers to the use of international law in national courts are identified. Occasionally, they include scepticism and even hostility about this body of law. However, the past 60 years have witnessed a remarkable change in judicial attitudes in final courts in most Commonwealth countries.

In the UK, the impact of Europe has helped create an ‘incoming tide’. In South Africa, India and Canada, constitutional provisions have stimulated the change. New Zealand is now affected by its Bill of Rights Act. But, in Australia, none of these forces was available and decisional authority adhered for decades to strict dualism.

The changing pace of utilisation of international law in the UK and Australia are described. In the UK, the Human Rights Act 1998 now consolidates a trend already happening in the courts. In Australia, the Mabo decision in 1992 effectively endorsed the Bangalore Principles on the municipal application of international human rights norms. This paper describes the contrasting case-law. In the foregoing countries, it concludes with a response to criticisms of judicial utilisation of international law and a suggestion of the proper jurisprudential basis that can be identified to sustain a judicial process that is now well advanced in the countries surveyed.

In the UK and across the globe, women struggle to get a place on the boards of large public companies and still take home less pay than their male counterparts. At a time of financial crisis and corporate governance failures, this lack of equality is considered especially problematic because the talents of half the workforce are not being utilised fully. This paper explores the possibility of introducing legislative gender quotas for company boardrooms in the UK. Such laws have been passed in Norway and Spain with dramatic results. Other countries, such as France and the Netherlands, look set to follow the examples of Norway and Spain. Has that time arrived in the UK?

The relationship between criminal law and regulatory techniques in responses to corporate crime is complex and changing. The Serious Fraud Office's increased proactivity in relation to economic crime is precariously balanced on the fulcrum of criminal and regulatory rhetoric. In this paper I note significant developments and suggest that the similarities and differences between regulatory and criminal law approaches to corporate accountability are ripe for re-examination.

This paper considers the relevance of a finding that, even absent the defendant's unlawfulness, the private law claimant would have suffered the losses claimed. It provides a principled framework for considering the issues raised by such a finding of ‘losses in any event’, arguing that it should be distinguished both from causation of injury and from the scope of the defendant's duty of care, and that it should be treated as raising a question of damages. It highlights the need, particularly in pure economic loss cases, for a careful comparison of the real and the hypothetical losses so as to determine whether the latter would indeed have been losses in any event. In this regard, the decision of the Court of Appeal in Calvert v William Hill Credit Ltd is subjected to close scrutiny. A more general argument advanced is that tort and contract both do and should adopt similar approaches in this field.

This paper examines the recent resurgence of interest in the legal biography among legal scholars. It argues that the legal biography has traditionally been treated with suspicion within the English law school due to ideological and methodological concerns about the intellectual validity and robustness of the form, and because of reservations about its true disciplinary province. Through a literary survey of legal biography, it claims a tension between intellectual and empirical approaches that parody the tension between the internal and external traditions in legal history. More recent biographies, however, have succeeded in bridging these divides and in demonstrating the potential value of legal biography in deepening our understanding of the human context of legal phenomena.

Legal paternalism occurs when the law forces individuals to avoid certain risks (‘hard paternalism’), or, without coercion, nudges them away from such risks (‘soft paternalism’), on the ground that otherwise they will make unwise decisions. The questions when and how such approaches should be taken are of fundamental importance in a society in which there are increasing risks to health and livelihood resulting from technological developments and greater freedom of choice. However, they are not openly addressed in policy-making circles and have also been neglected in the European legal literature. In this paper, I attempt to explain these paradoxes and to outline a theoretical benefit–cost framework for determining when and how legal paternalism might be considered appropriate.

This paper examines the new statutory regime for paying damages for personal injury by means of periodical payments instead of a lump sum. How are such payments to increase in future to take account of rising care costs, especially when these usually form the largest part of a major award? The answer to this question is crucial in determining the extent that the new form of payment will be used. How periodical payments are to be indexed is also a key factor in calculating the total cost of compensation and, in particular, in assessing the liabilities of the National Health Service. The issue gave rise to litigation which was voted by personal injury practitioners as the most important of the year. Here, that litigation and the statutory reforms which gave rise to it are set in their wider academic contexts.

In Sempra Metals Ltd v Inland Revenue Commissioners, the House of Lords, by a majority, recognised the right to recover compound interest for the ‘use value of money’, an independent benefit from the principal sum. This right is based in the principle of unjust enrichment. Nevertheless, the House of Lords could not agree on the proper understanding of ‘use value of money’ and left many important questions unaddressed which are crucial for paving the way forward for a claim for the ‘use value of money’. This paper will meet the following challenges – to justify the majority's position in Sempra Metals in recognising a right to compound interest for the ‘use value of money’; deal with the theoretical basis of ‘use value of money’; and recommend a model as the way forward for this newly recognised claim.

This paper addresses the criminalisation of fabricated images of child pornography. Focusing on the new offence of possessing ‘non-photographic pornographic images of children’ (NPPIC) under the Coroners and Justice Act 2009, it assesses whether harm- and morality-based arguments legitimate the extension of the criminal law to this activity. I contend that harm may be caused to children by NPPIC that are depictions of real child sexual abuse, and images that depict the fantasy sexual abuse of a real, recognisable child. However, it is extremely difficult to find a legitimate basis for prohibiting the possession of fantasy, completely fabricated NPPIC through a reasoned application of the harm principle and thus criminalisation of such images is not justified. Adopting a liberal perspective, I argue that moral harm-based arguments ultimately fail to convince, since legal moralism or moral paternalism should not be acceptable grounds for criminalisation. I conclude that a stronger case for criminalisation would have been made had the offence been limited to NPPIC depicting real child sexual abuse, or featuring real, recognisable children, or targeted at creators and distributors rather than possessors.

In England and Wales, trial by jury is typically reserved for more serious offences and is by no means the norm of criminal prosecution. Despite this, the jury continues to hold enormous symbolic and practical significance. In a context in which research with ‘real’ juries is prohibited, this paper outlines the findings of a mock study in which members of the public deliberated towards a unanimous verdict, having observed an abbreviated rape trial reconstruction. It reflects on the structural processes (including the use of narrative, the presence of a foreperson and group/inter-personal dynamics) that framed the tone and direction of discussions. In so doing, it generates insight into what may go on behind the closed doors of the jury room in rape cases and – more broadly – highlights the ways in which differently composed juries, when faced with the same scenario, may reach divergent verdicts or embark on radically different routes to reach the same destination. In addition, it explores the extent to which participants, having been directed on appropriate legal tests and burdens of proof, were able to understand and apply these standards; and it reflects on the implications of this in terms of future improvement of the jury trial process, both in rape cases and beyond.

The use of proprietary estoppel to make or support claims to property is now common. Case-law tells us that the concept of unconscionability is central to a successful claim, but little guidance is provided as to what ‘unconscionability’ means or how it is to be established. It is often assumed rather than explained. This paper argues that unconscionability in fact has a reasonably clear meaning within the law of proprietary estoppel and that it can be used to define and confine proprietary estoppel within reasonably clear boundaries. It seeks to explain that proprietary estoppel is at heart an antidote to a lack of required formality in the creation or transfer of property rights and, consequently, that the proper meaning of unconscionability is linked to these formality requirements. Unconscionability is therefore not a cover for unregulated judicial discretion, nor a loose term to describe a general sense of unfairness, but a concept which can be used to discriminate objectively between valid and invalid estoppel claims.

The environmental impact of mass consumerism is a growing concern, with a particular consequence being the production of significant levels of waste goods. Goods are often disposed of whilst still being useable. One proposed method of reducing the environmental impact of the levels of waste of useable goods is freeganism. This paper provides an overview of freeganism, followed by an evaluation of the impact of English criminal law on freeganism. This paper will consider the claim that freegans commit theft. First there is analysis of the possibility that freegans cannot be guilty of theft because they only deal with abandoned property. Although there is considerable strength in this claim, the difficulties with establishing that property is abandoned necessitates the development of an alternative defence. It will be suggested that freeganism is not an activity that is dishonest in a way so as to attract criminal sanction. This argument is based on the structure of the criminal law relating to theft, which has defences based on claims of right, subjective honesty and the considerations of ordinary people (ie jury members). It is concluded that freegans should not be guilty of theft under the current English criminal law.

For some years now, there has been a growing orthodoxy in EU legal studies which maintains that the EU project is less about achieving uniformity of laws across the Member States, and more about managing flexibility and differentiation. However, for the most part, space for differentiation is recognised only as between states or groups of states. The present paper moves beyond this level to explore the scope for local differentiation, at a sub-state level. This inquiry has been motivated by the recent Horvath judgment, in which the European Court of Justice was asked whether differential implementation by the devolved administrations of the UK of certain EU law obligations was lawful. The paper places these developments alongside other judicial, legal and political developments, to demonstrate a growing recognition of the role of regions within the EU's multi-levelled system of governance, revealing that the EU order is, in some respects, finally catching up with the realities of the rise of devolution and decentralisation taking place across Europe. However, it is submitted that there is further the EU could and should go in recognising, if not a ‘Europe of the Regions’, then a ‘Europe with the Regions’.

The United Nations Standard Minimum Rules for the Administration of Juvenile Justice state that there should be ‘a close relationship between the notion of responsibility for delinquent or criminal behaviour and other social rights and responsibilities’. If healthcare autonomy, or the ‘right to be responsible for making decisions about our own medical welfare’, is accepted as one of these social rights then, in England, the age gap between criminal responsibility and healthcare right is considerable. It has been suggested that this age difference might be explained in terms of the attribution of responsibility; in essence that there is a difference in the timing and nature of the responsibility being ascribed. The aim of this paper is to examine the concept of responsibility, particularly as it relates to adolescent decisions concerning death; the refusal of life-saving treatment, on the one hand, and the commission of homicidal acts, on the other. It would appear that there is considerable overlap in the types of responsibility alluded to in both situations, most particularly in the notions of capacity responsibility and prospective responsibility. If this is so, then having a wide gap between the two ages of responsibility would seem to lack a secure jurisprudential basis.

The recent experience of the credit crunch has cast doubt on the prudence of regulation of the mortgage market based upon the concepts of responsible lending and borrowing. Both the Turner Review and the Financial Services Authority's follow-up Mortgage Market Review identified irresponsible lending as one of the principle causes of the credit crunch. Yet easy access to mortgage finance has underpinned the growth of owner occupation and the promotion of low-cost home ownership. This paper examines recent regulatory initiatives to articulate responsible lending and borrowing in more concrete terms, which suggests a shift towards greater lender responsibility through affordability checks, clearer product explanation and the possibility of product regulation. Whilst such proposals may assist in the pursuit of a more stable mortgage market, they cast serious doubt on the future sustainability of low-cost home ownership.