From the Arab Spring and Occupy to the London riots and student tuition fee protests, the disordered crowd has re-emerged as a focal point of anxiety for law makers. The paper examines two recent cases where the UK courts have thought about crowds. In Austin, the House of Lords connected the crowd to an idea of human nature. This essentialist rendering placed the crowd within an old analytical register where it is understood to release a primordial violence. In Bauer, the Administrative Court utilised a very different sense of the ‘crowdness’ of the crowd to uphold the conviction of UK Uncut activists for aggravated trespass. In their novelty and difference, these two mutually exclusive senses of the crowd open an essential question of the relation between law and society. This paper introduces the ‘Law of Crowds’ as a distinctive way to understand the questions of protest, revolt and democracy.

Much family law scholarship in recent years has been focused on the recognition of different types of family relationship. Often, the rationale for the grant of rights and duties to new forms of relationship is said to be because the parties have shown commitment, or the same degree of commitment, as those in formally recognised unions, such as marriage. But there has been relatively little consideration of why or how commitment can provide an adequate rationale for the imposition of legal consequences, in particular, legal obligations, especially when such commitment may be lacking on the part of one of the parties, or comes to an end. This paper explores the meanings of obligation and commitment within the family and questions whether commitment provides a necessary or sufficient justification for the imposition of legal obligations in family relationships.

Private law courts in the UK have maintained the de minimis threshold as a condition precedent for a successful claim for the infliction of mental harm. This de minimis threshold necessitates the presence of a ‘recognised psychiatric illness’ as opposed to ‘mere emotion’. This standard has also been adopted by the criminal law courts when reading the Offences Against the Person Act 1861 to include non-physical injury. In determining the cut-off point between psychiatric injury and mere emotion, the courts have adopted a generally passive acceptance of expert testimony and the guidelines used by mental health professionals to make diagnoses. Yet these guidelines were developed for use in a clinical setting, not a legal one. This paper examines the difficulty inherent in utilising the ‘dimensional’ diagnostic criteria used by mental health professionals to answer ‘categorical’ legal questions. This is of particular concern following publication of the new diagnostic manual, DSM-V, in 2013, which will further exacerbate concerns about compatibility. It is argued that a new set of diagnostic guidelines, tailored specifically for use in a legal context, is now a necessity.

The Criminal Justice and Courts Act 2015 has created several new offences regarding juror misconduct. While this legislation has been passed in response to jurors accessing improper ‘evidence’ online, it is wrong to treat juror misconduct as a new problem. The most famous case on this topic (Bushell's Case) did not completely prohibit juror punishment, but the rhetorical force of the decision was such that penal practices have until recently been overlooked in the academic literature. This paper argues that assessing the new offences is greatly helped by understanding how juror misconduct has been responded to in the past. Drawing on the language of Bushell's Case itself, as well as new archival research, it argues that previous practices of juror punishment have largely depended on whether particular instances of misconduct related to the juror's ‘ministerial’ or ‘judicial’ functions; and that ‘judicial’ offences (those relating to verdict formation) have been much less likely to be punished. Rather, such offences have tended to be managed away. If today's judges continue acting in this way, the new offences are unlikely to be resorted to very often, with the judiciary being much more likely to focus on techniques for avoiding misconduct in the first place.

This paper will examine the structure of the defendant-sided unjust factors, by which I mean duress and undue influence. The paper first argues that undue influence is based on abuse of deferential trust placed in the defendant and duress on an illegitimate threat leading to the claimant's lack of consent. The paper distinguishes undue influence from the unconscionable bargains doctrine. The paper then models the effect of that on the claimant's intentional agency by reference to Michael Bratman's influential theory of intention. It suggests that while mistake can be modelled by way of the failure of a condition on his intention, meaning that the claimant's intention does not cover the facts as they actually turn out to be, defendant-sided factors are based on the defendant's having improperly inveigled himself into the claimant's practical reasoning. It suggests that this happens either by way of the defendant's illegitimate structuring of the claimant's choice or by way of the claimant's deferring his judgment to that of the defendant. The claimant's intentions have, in philosophical language, agential authority, but the claimant was ‘in the grip of a norm’; the essay explores what this concept might be.

In the past two decades, it has become commonplace for legislative–judicial engagement on contested constitutional questions to be described as a dialogue. This paper argues that the time has come to abandon the notion of dialogue. The first part of the paper describes the difficulties with dialogue theories. Despite the existence of many different versions, these theories share certain constitutionally problematic characteristics. Dialogue theories promote a view of government that is unrealistic, susceptible to normative bias and that overlooks the critical importance of disagreement and institutional differences to a system of democratic government based on the rule of law. The second part of the paper argues that Christopher Ansell's idea of collaboration-as-fruitful-conflict provides a more descriptively and normatively appropriate account of the relationship between the legal and political branches of government.

The canon law rules addressing ‘Church Pollution’ provide a long-standing example of social regulation. A survey of historical material, and secondary sources, identifies a sophisticated set of precepts that developed over centuries. This development included application to one of the most important events in medieval England: the murder of Thomas Becket. Perhaps more importantly, the regime was widely used and thus of great significance to the ordinary citizens of the Middle Ages. Though largely historical, more recent examples of employment can also be found. When viewed through a contemporary lens, there are some connections that can be made with modern concepts of ‘pollution’ and contemporary environmental law and policy, such as that relating to contaminated land. While the relationships should not be overplayed, that analysis suggests a social and cultural heritage that has been drawn upon, whether consciously or not. When attempting to view matters from the perspective of medieval society, so conceptualising the ‘environment’ to include consideration and protection of the spiritual environment, further associations can be found. The differences in focus for the regulatory endeavours reflect differing fears, values and priorities. They also identify how these factors influence our definition and regulation of ‘pollution’.

This paper examines the legal status of humanitarian intervention in the aftermath of the abortive military operation in Syria. In tracing the history of the doctrine up to the beginning of the Syria crisis, it asserts that the negative reaction to the abortive use of force has reinforced the unlawfulness of humanitarian intervention. In appraising in detail the legal positions of the UK, the USA, France and other states, it analyses the interplay of constitutional law and international law in the Syria crisis with reference to the role of consultations of national parliaments. It asserts that the Syrian precedent illustrates the difficulty of identifying the opinio iuris of a state in which the input of international law through legal advice and public debate affects the output of that state through the expression of its legal position on doctrinal questions. By scrutinising the approach of the British government in consulting the House of Commons in relation to the continuing operations against Islamic State in Iraq, it argues that the National Security Strategy review in 2015 should address the concerns expressed by parliamentary committees regarding consultation of Parliament, the provision of legal advice and the lawfulness of humanitarian intervention.

This paper proposes a model for designing consumer dispute resolution (CDR) mechanisms (including conciliation, adjudication, arbitration and ombuds schemes). This field has expanded significantly in recent years, replacing courts as the primary forum of dispute resolution in some areas of consumer-to-business activity. This expansion has been ad hoc, with a lack of consistency in the design of CDR mechanisms and in the overall shape of the CDR landscape. In light of the recent implementation of the EU's Directive on Consumer Alternative Dispute Resolution and Regulation on Consumer Online Dispute Resolution, Dispute System Design (DSD) requires urgent attention to ensure that the design of future mechanisms is based on coherent principles. A failure to address this issue risks undermining the legitimacy of state-sanctioned dispute resolution. The model described in this paper proposes a systematic approach and aims to: synthesise existing DSD models; apply the concepts of DSD to the field of CDR; and provide a framework that may be of use in other disputing contexts.

The new UK regulatory structure for financial services is now firmly in place. This brings with it changes to the consumer credit regime, both in terms of regulation and supervision. The unfair credit relationship test is a sanction contained in the Consumer Credit Act 1974, and its future may well be subject to review as further reform to the UK regulation is actioned. This paper provides a fresh examination of the test's developing role in relation to protecting borrowers against unfairness and its application by the courts. The question is then posed as to whether evidence of underlying ‘competing’ ethics in both case-law and statutory policy suggests that the test will no longer be appropriate in the control of unfairness in relation to the credit consumer, when changes to the legislation and regulatory framework are concluded.

Elizabeth Fisher, Bettina Lange, Eloise Scotford and Cinnamon Carlarne have delivered a hard but justified message: environmental law scholarship is still perceived by many in the field as immature, and this is a reflection of the methodological challenges posed by its subject. This paper expands on their argument that scholars should think more closely about what can be learnt from debates about method in the wider legal mainstream and interdisciplinarity as part of the process of developing the discipline. It locates what is called ‘classic’ and ‘novel’ environmental law scholarship at the margins of the legal academy, which is conceptualised as an imagined legal ‘space’. The paper then explores the ways in which insights derived from the environmental humanities and sciences can invigorate and mature environmental law scholarship by creating exciting new interdisciplinary contexts for the development of legal research methods.

This paper offers a timely investigation into access to justice in rural areas through place-based research. The paper reports an empirical study designed to gain the local knowledge and personal experience of one particular group of rural dwellers in the hope that it might help encourage a wider discussion on access to rural justice. The research has been conducted within the wider socio-political context of austerity that provides a challenge to public-sector service delivery in general, alongside the particular legal impact of budget cuts on the provision of justice, with closures of large amounts of courts, the decline in legal aid provision and reductions in police numbers. Such are important issues for England and Wales as a whole, meaning that this research is contemporary and represents one of the first academic studies to specifically deal with the impact of austerity on access to justice. The value of this research is further heightened with its focus on the specific rural impact of such cuts as rural areas are those likely to face the biggest effect on provision while concomitantly being the least studied area of legal provision, with notably little scholarship in the past two decades into justice in rural England and Wales. Considering the damage these cuts may cause to rural justice is a current issue of utmost importance to the principle of access to justice. The paper offers the foundations upon which a new wave of academic attention to justice in rural areas should be developed, reflecting the need to give due credence to the rural in contemporary socio-legal scholarship.

There is no doubt that being ‘critical’ about victim-blame requires ensuring first that it is the perpetrator and not the victim who is held responsible for sexual offending. At the same time, engagement with this topic requires critical acuity as to how victim-blame is identified, and to the boundary between raising legitimate questions about the presence or absence of consent in less than ideal circumstances, and falling back on to myths and stereotypes that are unfair to complainants and damaging to victims. This paper identifies and critiques three purported intersections of rape myths and victim-blame that have gained widespread acknowledgement within feminist legal studies: first, that a woman is blamed for voluntarily putting herself into circumstances in which ‘rape happens’; secondly, that a woman is blamed for ‘miscommunicating’ her refusal; and, thirdly, that consent is wrongly understood to have been given in circumstances where a woman in fact lacked the freedom to do so. This critique of methodological and analytical approaches to identifying victim-blame as a symptom of rape myth acceptance focuses on research published recently by the Office of the Children's Commissioner, ‘“Sex Without Consent, I Suppose That Is Rape”: How Young People in England Understand Sexual Consent’.

In England and Wales, the issue of mediator immunity has not been considered by the courts or via legislation. Mediator immunity is constructed by analogy to that given to judges, but the role of the judiciary is different to that of mediators, who do not determine cases and, it is argued, do not require protection from litigation because the parties are responsible for the final settlement outcome. In Australia and the USA, mediators are usually provided with immunity in mandatory, ‘court-annexed’ programmes, although this varies from an absolute to a qualified level that is constrained by bad faith or dishonesty. In the English jurisdiction, mediation is court-connected and parties are dissuaded from accessing the courts through the risk of costs penalties or automatic referral schemes. Therefore, the time is opportune for a review of many issues involved in mediation development, including immunity. This paper considers the reasoning for extending immunity to mediators, before concluding that the subject should not be determined through legal action until after a comprehensive review of mediation developments and after a consideration of mediator standards and regulation of practice.

This paper sets out the distinctive harm caused and wrong done to child pornography victims. It presents a paradigm of reparation within a restorative justice framework that explains the significance of material reparation for these victims. The paper demonstrates that because of the particular nature of child pornography offences and the harms and wrongs occasioned, existing avenues for legal redress in England and Wales and the USA are generally inadequate and ill-fitting, and that a new mechanism for effecting suitable reparation is required. It concludes by sketching a new mode of restorative justice for victims of child pornography, emphasising significant matters that must be addressed alongside financial redress in order to facilitate victims’ restoration.

How easy ought it to be to enact constitutional amendment? In the absence of constitutionally prescribed procedures, fundamental reforms in the UK can often appear hurried, under-consultative and controlled by transient political majorities. In the recent referendum on Scottish independence, the NO campaign's promise of additional powers to Holyrood in the face of a possible ‘Yes’ vote appears to fit this pattern (even if, for reasons of political sensitivity, it was not driven directly by members of the Coalition government). A recent sample of concluded constitutional reforms, including the Constitutional Reform Act 2005, the Constitutional Reform and Governance Act 2010 and the Fixed-term Parliaments Act 2011, have drawn criticism from within Westminster on the grounds of defective process. Specific options to improve pre-parliamentary and parliamentary stages of constitutional reform have been proposed with a view to attaining principled procedures of constitutional reform removed from executive control that signal attachment to process values such as wide and effective consultation, deliberation outside and inside Parliament, and informed scrutiny. The foregoing prescriptions for remedying defective processes may, however, be said in the ultimate analysis to retain a normative preference for a more formal, elite-managed vision of constitutional change that is premised upon a limited conception of the citizens' ‘informed consent’. In any case, in purely descriptive terms, top-down managed change does not capture the totality of patterns of past constitutional reform in the UK. In the nineteenth and early twentieth centuries, for example, radical grassroots campaigns for the extension of the franchise resulted ultimately in universal adult suffrage. More recently, the Scotland Act 1998 can be seen as the culmination of a civic society–led, deliberative engagement with ordinary voters over decades that offered an alternative vision of ‘bottom-up’ constitutional reform to that seen in more formal, elite-led processes of constitutional reform. The inclusive and participatory nature of the campaign for Scottish devolution marked out a radically different model of constitutional reform to that which has typified Westminster-style amendment and which is still largely directed by political elites. In such circumstances as prevail currently at Westminster, it is difficult to give much credence to claims that the outcomes of constitutional reform processes enjoy the ‘informed consent’ of the people.

This paper concerns the origination, development and emergence of what might be termed ‘Olympic law’. This has an impact across borders and with transnational effect. It examines the unique process of creation of these laws, laws created by a national legislature to satisfy the commercial demands of a private body, the International Olympic Committee (IOC). It begins by critically locating the IOC and Olympic law and examining Olympic law as a transnational force. Using two case studies, those of ambush marketing and ticket touting, it demonstrates how private entities can be the drivers of specific, self-interested legislation when operating as a transnational organisation from within the global administrative space and notes the potential dangers of such legal transplants.

What is negligence? Our answers to this are frequently misleading, because we turn all our attention on to what doctrine says rather than asking how it is actually used. So we routinely talk of personal liability, even though we know very well that individuals (as opposed to organisations, typically insurers) do not pay damages. We think of negligence doctrine as if it were applied automatically and without bias, when in fact the complex insurance arrangements involved have rather decided biases. And we treat the development of the law purely as a matter of evolving judicial thought, when in fact legislatures and insurers also routinely modify the system in response to new realities. The result is that fundamental change has occurred under the very noses of theorists, who still tell us that negligence holds individual defendants responsible for their wrongdoing (it does not) or that the economic effect of tort rules is to deter defendants (there is not much reason to think this is so). Why are the leading theoretical justifications of negligence – corrective justice, responsibility theory and economic theory – so dependent on myths? Is it because the myths do not matter? Or is it that, in fact, we have no good justification for the system as it works in practice at all – we have no good theory of why negligence makes sense because it does not, in reality, make sense?

This paper considers the provisions of the Guernsey image rights register, which came into being in 2012, alongside the image rights protections available in the EU Member States as revealed through a Commission-funded survey into the image rights of athletes. While it suggests several reasons for the limited popularity of the register and notes that the applicable regimes depend on whether violations are by third parties or by those with whom the performer is currently within a contractual relationship, it highlights the Guernsey scheme's potential benefits to performers, particularly in the field of tax planning, and makes suggestions as to how its relevance to them might be enhanced in the light of the Commission survey data and the applicable UK tax regime. By drawing on literature from masculinity and African-American studies especially, the paper also offers suggestions as to why performer endorsement is potentially so lucrative; but it also highlights some of the industry's negative effects and suggests that, while there is not a particular ‘problem’ of image rights violations within the Member States, discussions about the benefits of standalone image rights need to be informed by an awareness of these wider issues.

A host of activities jeopardise the safety of an excised organ: an organ transported across local, regional, state or national boundaries could be damaged or lost in transit. A thief might snatch the organ from the possession of the transplant team; a transplant surgeon could use the organ for the treatment of their relative or patient, a celebrity or an influential political figure, instead of transplanting the organ into the properly selected and designated recipient. Also, the organ could be damaged maliciously by a third party. Furthermore, a live donor might change their mind after the organ had been retrieved, or the intended recipient might die before a scheduled transplant, after the organ had been retrieved from a live donor. In the above cases, the organ is in a state of limbo, prompting an enquiry into the appropriate remedial responses of the law for a claimant. Non-proprietary remedies might be helpful in the above scenarios, but fail to provide the necessary continuing control. Accordingly, the first section of this paper considers whether positive law recognises the existence of proprietary interests in excised organs; absent such protection, this paper suggests that the law should recognise proprietary interests in excised organs.