Contemporary settled democracies, including the USA, England and Wales and Ireland, have witnessed a string of high-profile cases of institutional child abuse in both Church and State settings. Set against the broader literature on transitional justice, this analysis argues that there are significant barriers to truth recovery within the particular context of historical institutional abuse by the clergy in the Republic of Ireland. In the main, it argues that the frameworks of the inquiries and commissions into historical institutional child abuse are not conducive to truth recovery or the search for justice in dealing with the legacy of an abusive past. It is the Church–State relationship which makes the Irish situation noteworthy and unique. The Catholic Church and child care institutions are especially self-protective, secretive and closed by nature, and strongly discourage the drawing of attention to any deficiencies in organisational procedures. The nature of the public inquiry process also means that there is often a rather linear focus on accountability and apportioning blame. Collectively, such difficulties inhibit fuller systemic investigation of the veracity of what actually happened and, in turn, meaningful modification of child care policies. The paper concludes by offering some thoughts on the implications for transitional justice discourses more broadly as well as the residual issues for Ireland and other settled democracies in terms of moving on from the legacy of institutional child abuse.

This paper explores cases involving disputes between lesbian parents and known donors with whom informal insemination arrangements were made. It observes that the current legal framework for recognising parents following assisted reproduction is incapable of dealing adequately with known donors, notwithstanding a host of recent developments in the law relating to lesbian parenting. As a result, the case-law exhibits judicial uncertainty and inconsistency about the extent of the recognition to which known donors should be entitled. In spite of the difficulties posed by using known donors, the paper argues that there is a strong case for finding an appropriate way of accommodating them within the legal framework for recognising parents. It explores some of the possible legal responses and highlights their potential advantages and disadvantages from theoretical and practical perspectives.

Why is food regulated separately from, and differently to, other consumer products? This paper attempts to examine the different regimes for the regulation of food and general product safety, and examines the economic, social and cultural reasons for the separation. Finally, the paper considers whether the separate nature of the regimes is necessary, or whether food should be regulated within a ‘product safety’ framework.

One of the most contested issues in UK public law is how to calibrate the appropriate intensity of proportionality review in human rights adjudication. Here, the challenge lies in formulating a theory of intensity of review that can both comply with the constitutional framework introduced by the Human Rights Act 1998 (‘HRA’) and accommodate courts' varying levels of competence in different areas of litigation. This paper attempts to sketch such a theory in two steps. First, it argues that to fulfil the constitutional expectations brought about by the HRA, a minimum rigour of proportionality review should be observed. This baseline consists of requiring the government to demonstrate to the courts by means of cogent and sufficient evidence that a rights-limiting measure satisfies the distinct stages of the proportionality test. Secondly, this paper highlights the ways in which compliance with this baseline can nonetheless accommodate the courts' varying levels of competence in different adjudicative contexts. In particular, courts can vary the intensity of review once the baseline level of review is reached and adjust the nature of the evidence required from the government.

‘Hate’ crime has attracted intense debate, but surprisingly little has been written on how best to draft and interpret hate crime legislation. The dominant conceptual models derive from US scholarship. Although valuable, they pay insufficient attention to principles of criminal law and to how hate crime law is perceived. This paper explores these problems through a discussion of legal approaches to, and lay perceptions of, racism, as embodied in the racially aggravated offence. It proposes a model which offers a more just alternative.

This paper examines the legal support available to incarcerated children when they leave custody. It argues that the current support provided to custody-leavers – which includes both ‘resettlement’ (provided by youth justice agencies) and duties owed to some custody-leavers under Pt III of the Children Act 1989 – may achieve criminal justice aims (such as preventing re-offending) but does not adequately protect the status and rights that all custody-leavers have qua child. When the child leaves custody her primary status is child, not offender, and therefore it is argued here that she should be entitled to the same legal rights as analogous groups of children; namely, care-leavers. It is suggested that the reason why care-leavers and custody-leavers are comparable groups to whom parity in legal rights should be accorded is because the four types of responsibility that underpin the state's obligations to care-leavers (reparatory, assumed, generational and equity-based) apply equally to custody-leavers.

Framed within the broader context of law's engagement with modernism, this paper offers an argument in defence of copyright protection of John Cage's 4′33″ as a ‘musical work’ under the Copyright, Designs and Patents Act 1988. This argument approaches the issues involved analytically and contextually. In doing so, it draws on both legal and non-legal sources. Throughout the paper, the underlying question remains as to whether Cage's 4′33″ really is – or is not – a challenge to law (and to music).

In a wide range of circumstances religious activity and commercial activity may overlap, leading to what may fairly, albeit novelly, be categorised as commercial religion. This overlap is potentially problematic to law, raising as it does the possibility of inappropriate over-regulation of religious activity and religious claims and the possibility of inappropriate under-regulation of commercial activity and claims. One way to solve this problem is to create a binary divide between the commercial and the religious, so that any situation might be categorised as one or the other, and the appropriate legal framework and philosophies applied. This is the preferred route under the European Convention on Human Rights. Such a separation does not, however, address the complexity of regulating commercial religion in practice, as demonstrated by considering the regulation of commercial religion in UK consumer law. There are, however, strategies which may serve to reblend the commercial and religious elements.

This paper explores certain questions regarding whether the law concerning relief upon the dissolution of civil partnership and cohabitation should parallel that of marriage. It will be contended that while the principle of compensation does have an important role to play in the aftermath of de facto relationships, there remain reasons not to assimilate cohabitation fully with marriage – and in particular, not to apply the key principle of equal sharing that now informs divorce settlements in many jurisdictions, including England. On the other hand, an argument against assimilating marriage with civil partnership can be grounded in the fact that a civil partnership involves two parties of the same gender. This point generates room to argue that a presumption of equal sharing – to the extent that it rests upon compensatory rationales – may be less powerful in civil partnerships. Nonetheless, that claim can be circumnavigated by the argument for equal sharing as an independent principle – one applicable to civil partnership just as much as to marriage.

For over 300 years, criminal courts have regarded sexual infidelity as sufficiently grave provocation as to provide a warrant, indeed a ‘moral warrant’, for reducing murder to manslaughter. While the warrant has spilled over into diminished responsibility defences, wounding, grievous bodily harm and attempted murder cases, it is provocation cases that have provided the precedents enshrining a defendant's impassioned homicidal sexual infidelity tale as excusatory. Periodically, judges and law reformers attempt to reign in provocation defences, most recently in England and Wales where provocation has been replaced by a loss of control defence that, most controversially, specifically excludes sexual infidelity as a trigger for loss of control. This paper reflects on this reform and its reception, glossing Shakespeare's scathing critique of warrants for murder in Titus Andronicus.

The UK, as elsewhere, faces new environmental uncertainties, especially from climate change. The sustainability of the UK's existing flood loss indemnity regime in respect of property harm is threatened by factors that include greater ecological awareness on the part of policy makers, pressures to limit public commitments to flood defence, and insurers' increasing technical capacities to differentiate risk exposure across particular locations. The basis of current reliance on the commercial insurance market is called into question, as general levels of insurance availability and affordability come under threat. In turn, differential impacts from more restricted availability or terms of cover are likely increasingly to affect vulnerable individuals and communities, which will further intensify pre-existing take-up problems among particular groups. Key themes relate to issues that arise from this changing law and policy environment, including challenges to the delicate public-private balance that has underpinned the current arrangements, implications both for civil society as well as the insurance industry, and the extent to which alternative approaches might offer solutions.

This paper argues that the Pallant v Morgan equity should not be recognised as an independent doctrine because it does not rest on any tenable jurisprudential basis. It shows that a characterisation based on ‘common intention’ should be rejected because it is inconsistent with established legal principles and commercial practice. The alternative explanation based on breach of fiduciary duty, as suggested by Etherton LJ in Crossco No. 4 Unlimited v Jolan Unlimited [2011] 2 All ER 754 fares no better, as there is no reason why the Pallant v Morgan equity cases should be considered separately from other instances of breach of fiduciary duty in law. Further, this account must however be read in light of the Court of Appeal's decision in Sinclair Investments (UK) Ltd v Versailles Trade Finance Ltd [2011] 3 WLR 1153 which ruled that proprietary relief is only allowed in circumstances where the breach amounts to abuse of the principal's asset. This requirement is particularly difficult to satisfy in the paradigm case of the Pallant v Morgan equity, save in the case of agency. But where there is a relationship of agency, a constructive trust will also arise in accordance with an established agency principle, resulting in duplication in results.

E W Hornung's character Raffles, first introduced to the public in 1898, not only aroused considerable interest at that time but created an enduring image of the suave, gentlemanly burglar far removed from the stereotype of the rough, professional thief more usually associated with the crime. This paper investigates both the creation of the character and the creation of the stereotype in the nineteenth century in an attempt to discover not only the secrets of the appeal of the Raffles, but also some of the characteristics of early criminological discourse, some of which may cast their shadows to the present day. It also highlights tensions between conceptions of ‘amateur’ and ‘professional’ status both in relation to the protagonist's lawful pastime, cricket, and his unlawful career of burglary.

This paper examines fundamental issues concerning a corporation's right to sue for defamatory attacks on its reputation, the scope of the right and the remedies available. It first outlines the opposed positions in England and Australia, respectively. It also argues that a corporation, save for a government corporation that exercises governmental functions based on markedly different rationales, should have the right to sue in defamation premised on the concept of corporate reputation as property and for the purpose of vindicating its reputation. On the question of remedies, a corporation should be entitled to recover special damages as reparation for damage to reputation provided they are proved. This paper considers, instead of presumed damages, alternative remedies for vindicating corporate reputation. Finally, it examines the business and non-business reputations of both trading and non-trading corporations in relation to claims for damages.

Following the Supreme Court decisions in Manchester CC v Pinnock and Hounslow CC v Powell, this article examines the possible impact of Article 8 of the European Convention on Human Rights and Fundamental Freedoms upon protection of the home in creditor repossession proceedings. The central argument advanced is that, although occupiers may not all be protected through property law, they may enjoy an independent right to respect for their home under Article 8, which should be acknowledged in the legal frameworks governing creditor's enforcement rights against the home. The article suggests that the most common creditor enforcement route, through mortgage repossession proceedings, falls short in this regard. It takes as its primary focus the treatment of children in such proceedings to provide an example of the potential for a human rights-based property protection heralded by these two Supreme Court decisions.

Focusing on a single, uncontested will is unusual within legal studies. And the extensive literature about EM Forster has overlooked the significance of his will. This article endeavours to address these silences and develop a conversation between the two. It first explores the place of inheritance in Forster's life and novels; and in doing so highlights his interest in inheritance as both a concept and a practice. Turning then to his will, it argues that it reveals a reflective personal and political engagement with concerns about kinship, sexuality and intimate citizenship which are central to current debates within socio-legal and sociological scholarship. This reading consequently argues that his will is a text that can be read alongside his other work; that it represents a ‘posthumous publication’. While a close, critical reading of the will of one very particular individual, the article identifies the challenges posed to testators in negotiating the public and private nature of wills and highlights both the rich potential and the difficulties that these texts present for socio-legal, literary and biographical scholarship.

England and Scotland have very different legal systems in relation to succession generally and intestacy in particular. Nevertheless, they have faced similar problems and tensions when attempting to reform the law of intestacy. This article considers the basic division of an intestate estate between spouses and children (and other issue). It is argued that prior to the twentieth century intestacy law in both jurisdictions was underpinned by a dynastic model in which the estate was preserved for successive generations. However, in the twentieth century the interests of the spouse became the primary focus of intestacy distribution. Recommendations (by law commissions in both jurisdictions) for further reform of the law are marked by a further intensification of the rights of the spouse (potentially leading to a further decline in the entitlement of children and issue). The Commissions have not only jettisoned dynastic intestacy, but also the earlier framing of intestacy rules based on the examination of wills and the ‘presumed intention’ of the intestate. Instead, the Commissions have preferred to formulate rules which are generally supported by empirical evidence such as public opinion surveys; and tempered by the aims of simplicity and administrative efficiency. This article contends that in order to create a division of assets reflecting acceptable standards, the aim of modern intestacy legislation ought to be the distribution of assets to those classes of family members who are likely to be the most economically vulnerable (such as aged spouses, minors and disabled adults). In any event, the ageing population and the needs of surviving aged spouses are likely to have a significant impact upon the framing of intestacy law in the future.

This article considers the implications for higher education (HE) of the removal of the retirement age in 2011. It starts with an exploration of findings from empirical research which looked at the use of the retirement provisions of the 2006 Age Regulations in the UK HE sector. It highlights a number of concerns identified as a result of that research relating to retirement practices in HE and considers how these might apply given the recent abolition of a mandatory retirement age. The article uses a legal empirical approach to explore how the law would apply to any employer in HE attempting to justify continued use of mandatory retirement. It also examines other options such as the use of incentives to retire, the use of flexible working and the increased use of performance management. The article begins with an introduction to the main findings of the research, before turning to consider the current case-law relating to the legality of retirement provisions, including the recent Supreme Court decision in Seldon v Clarkson Wright and Jakes, and the legal implications of alternative options for managing extended working lives.

This paper considers the immunity in tort enjoyed by superior court judges in England and Wales. It suggests, first, that the current level of immunity is set too high; secondly, that the reasons traditionally given for this level of immunity are overwhelmingly unconvincing and that, therefore, thirdly, a lesser degree of immunity (which allows judges to be exposed to potential liability under a modified version of the tort of misfeasance in a public office) would be the preferable way to proceed.

This article explores two questions. First, in adjudicating claims under the Human Rights Act 1998 (HRA), should the court defer to the executive or legislature on the ground that the latter two institutions possess superior expertise or information-gathering powers, when such expertise or powers fail to generate persuasive first-order reasons for the court? This article argues that rationality requires courts to defer on these second-order grounds of institutional capacity in situations of judicial uncertainty. Secondly, this article examines an underexplored question in the current literature: when is it justified for courts to consider the government as possessing second-order grounds of institutional capacity that warrant deference? It is argued that rational, impartial and open adjudication in the post-HRA era requires the government to prove its claims of superior institutional capacity, and courts to openly scrutinise such claims by considering a number of factors, including, crucially, the government institution's track record of expertise and credibility.