In UK and US company law and corporate governance, a highly influential economic theory views the company, and the rules related thereto, as a nexus of contracts for organising business activity. This so-called contractarian theory of the company depicts fundamental corporate governance arrangements as a form of private ordering, in which rules are spontaneously produced in the absence of formal legal intervention. This paper draws upon broader empirical evidence of real world private ordering to make two essential arguments, which provide much-needed nuance to the idealised view of spontaneous governance found in the contractarian analysis. First, it emphasises the significance of a distinctive and essential correlative and causal connection between hierarchy and the development and nature of private orders. Secondly, it highlights the ways in which the state positively interacts with the purported self-regulatory capability of the market to produce these uneven endogenous rules.

This essay offers a reinterpretation of the constitution of intellectual property as an academic subject by focusing on the work of Thomas Anthony Blanco White (1916–2006). His textbooks were fundamental for the development of ‘intellectual property’ in Britain and the Commonwealth. Not only did they provide the basis for a discipline in the making, their timely publication also helped to connect and, more importantly, constitute a diverse audience of articled clerks, practitioners and students. This essay traces the making of Blanco's first booklets and his subsequent rewriting of them, which culminated in the publication of what would become a standard textbook writing technique in British intellectual property in the twentieth century. In explaining the history of these textbooks and their pivotal role for the recognition of intellectual property as an academic subject in the university curriculum, the essay explores the ways in which a distinctive knowledge of and writing about intellectual property emerged in Britain in the post-war years.

The Social Action, Responsibility and Heroism Act 2015 entered into force on 13 April 2015. It is too soon for it to have been considered judicially, and it has not yet been subjected to sustained academic analysis. Accordingly, this article considers its impact. In doing so, it situates the Act in its social context and draws attention to the fact that it is part of a large network of statutes that share the same objectives. It is argued, contrary to prevailing views, that parts of the Act change the law. It is also maintained that the Act’s reach is not confined to personal injury cases or even to tort cases. It potentially applies far more widely, including to contractual actions that allege a failure to take reasonable care. In addition to analysing the Act, this article investigates why the legislature might want to restate the common law (which is what the Act does in part), whether replicating the common law is desirable and, if the legislature is bent on restating the common law, how it should go about doing so.

This paper considers some of the difficulties arising from how English law conceptualises certain types of security interests over IPRs, and the problems arising from dual registration systems. This analysis is informed by a critical comparison of the current English doctrine, alongside the US system and the proposals from UNCITRAL. It is argued that attempts to regulate a world of integrated goods (whereby goods and software are inextricably interconnected), through unintegrated regimes of legal governance of security interests over goods and IPRs, is unsustainable. It will thus be argued that reform of security interest law generally (to bring about a functional system of security) and a single register for security interests whether over goods or IPRs is necessary. Specific recommendations to deal with problems concerning purchase money security interests, and third-party purchasers, are put forward.

‘Landscape’ is relatively underexplored in legal scholarship, notwithstanding its occasional centrality to legal analysis, and the ways in which law contributes to the shaping of landscape. Wind energy is an especially rich area for the exploration of landscape; not only do wind farms consistently raise concerns about landscape, but the existence of climate change complicates the response to local concern. Most of the legal literature on ‘knowledge’ focuses on the ways in which different ‘expert’ knowledges find their way into, and then shape, legal processes and decisions. This article is more concerned with the ways in which the planning system receives different knowledge claims, and validates some of them. The discussion turns around four tentative categories of knowledge claim: expert or technical knowledge claims; lay (or sometimes local) knowledge claims; prior institutional knowledge claims; and professional planning knowledge claims. Knowledge of the complex, dynamic and plural idea of landscape in any particular case is constructed in the process of decision making and reason giving through a careful layering of these different sorts of knowledge claim.

A great many people share the sentiment that it is a serious wrong to behave with gross disrespect towards deceased bodies. It may therefore come as a surprise to learn that, currently, English and Welsh criminal law is incapable of dealing with cases of corpse desecration. Drawing upon provisions found in other jurisdictions, I argue that this legal gap ought to be filled by a new criminal offence. This should turn on the objective wrong of disrespect to the corpse as an important symbol of a once-living person. This framing is important in order to correctly identify what it is that makes desecration rightly criminal, assign accurate labels and to avoid unwarranted over-criminalisation. I conclude by suggesting that only when such an offence is enacted will we be able to ensure that the respect that we deserve in life is reflected in the treatment of our deceased bodies.

Specialist environment courts and tribunals (SECs) are, in the main, reflective of highly dynamic forms of adjudication, mixing judicial forms with powers more traditionally found in the executive. However, despite their novel legal nature the literature on SECs is predominantly promotional and it fails to address the challenges to legitimacy and governance engendered by these institutions. Nor does it evince a robust theory of environmental adjudication. These omissions not only impoverish the discourse but practice unsupported by theory is creating an unstable edifice. To illustrate this point the difficulties experienced in New Zealand are examined. The argument is made that only by confronting the challenges created by SECs can we begin to lay the foundations for a new theoretical model capable of explaining and accommodating environmental adjudication.

A growing number of jurisdictions treat ‘hardcore’ cartel conduct as crime, in the belief that the threat of incarceration is necessary for deterrence. The significant economic harm caused by cartels is generally undisputed, but there is disagreement over whether cartel conduct is morally offensive enough to justify criminalisation. Critics argue that it is another example of ‘over-criminalisation’, seeking to regulate an activity that is morally ambiguous. Those in favour have sought to formulate normative justifications for why cartel conduct should be crime. Many of these rely on the assumption that members of society expect markets to be competitive and believe cartels are undesirable. This paper makes a significant contribution by testing this question empirically. Public surveys from the UK, Germany, Italy and the US are used to critically analyse the extent to which normative justifications for cartel conduct have empirical backing.

While the illegitimate pressure theory provides a more satisfactory theoretical basis for duress in contract law than the overborne will theory, it insufficiently addresses why a victim who has given deliberated consent should be excused from contractual responsibility. The paper proposes that the additional element of ‘excusable consent’ enhances the current analytical framework: first, by recognising that the law makes value judgments of both the threatening party's actions and the victim's response; secondly, by lightening the burden of the illegitimate pressure element and providing it greater focus; and, thirdly, by providing a better fit for considerations such as ‘no practical alternatives’ that strain the existing framework.

In this paper, we consider the Leveson inquiry's use of a narrative device – the policy cycle – to justify the need for a break with the past. We challenge that narrative, which runs through much of the literature, and posit a more nuanced and complex account of the politics and history of press inquiries, drawing upon the political science literature. We then reflect upon the implications of our findings for the future of press regulation.

This paper considers the impact of new media on freedom of expression and media freedom within the context of the European Convention on Human Rights and European Court of Human Rights jurisprudence. Through comparative analysis of US jurisprudence and scholarship, this paper deals with the following three issues. First, it explores the traditional purpose of the media, and how media freedom, as opposed to freedom of expression, has been subject to privileged protection, within an ECHR context at least. Secondly, it considers the emergence of new media, and how it can be differentiated from the traditional media. Finally, it analyses the philosophical justifications for freedom of expression, and how they enable a workable definition of the media based upon the concept of the media-as-a-constitutional-component.

This paper analyses the jurisprudence on the relevance of the commercial context to principles of the law of equity and trusts. We criticise recent UK Supreme Court decisions in the area (chiefly Williams v Central Bank of Nigeria, FHR European Ventures v Cedar Capital Partners and AIB Group v Mark Redler & Co) and identify a trend of the ‘commercialisation’ of the issues. The cases are placed in comparative context and it is argued that there is an unsatisfactory pattern of judicial reasoning, exhibiting a preference for some degree of unarticulated flexibility in commercial adjudication. But the price of that flexibility is a lack of doctrinal coherence and the development of equitable principles that will apply in, and beyond, the commercial context. We also argue that this trend has important implications for the coming rounds of Supreme Court appointments.

In this paper we report the results of an empirical study of 112 appellate decisions on the contributory negligence doctrine in England and Wales between 2000 and 2015. It is the first study of its kind in any common law jurisdiction, and builds on earlier research in which we looked at the doctrine's operation in first instance courts. Our dataset comprised every appellate decision in which contributory negligence was an issue that was handed down during the study period and which we were able to access electronically. The most important findings include the fact that appeals succeed more frequently in relation to the existence of contributory negligence than with respect to apportionment; that the overall prospect of winning an appeal on contributory negligence does not depend on whether the first instance court is a county court or the High Court; that claimants are nearly twice as likely to win an appeal regarding the existence of contributory negligence as defendants; and that by far most common discount imposed following an appeal is 50%.

Justification of a voluntary vaccination policy in England and Wales rests on tenuous foundations. Two arguments against voluntary vaccination are gaining ground. The first is that globalisation necessitates preparedness strategies for pandemics. Assuming sufficient supply, compulsory vaccination of adults and children constitutes a potential policy option in the context of a severe, vaccine-preventable pandemic outbreak. The second argument is that children have a right to preventive medicine and thus to vaccination. The influence of the UN Convention on the Rights of the Child and its emphasis on parents as the trustees of their children's best interests, and the increasingly global nature of our collective and individual responsibilities with respect to the transmission of vaccine-preventable disease present challenges to the right to refuse vaccination on our own behalf and on behalf of our children. Exploring methods of compulsion and persuasion utilised across Europe, the USA and Australia, this paper argues that necessity and proportionality must be reassessed, and national public health law and policy setting out a graduated and proportionate approach to compulsory vaccination developed as a matter of priority.

This paper explores the implications of D v Commissioner of Police for the Metropolis [2016] QB 161, a recent decision of the Court of Appeal in which two victims of a serial rapist successfully sued the Metropolitan police for investigative failures relying on Art 3 of the European Convention of Human Rights and the Human Rights Act 1998. The paper reflects upon the extent to which English courts are willing to recognise a duty to investigate within the wider context of civil claims against the police, particularly with regard to failures arising from the investigation of crimes of sexual and domestic violence. The comparative scope of tort and human rights claims is also considered, along with the evolving jurisprudential trend towards drawing a firm line between the two kinds of claim.

In 1919, Balfour v Balfour gave birth to the intention to create legal relations doctrine in contract law. In a dispute between a husband and wife, Lord Justice Atkin said that domestic commitments were not within the jurisdiction of contract law. It has had profound implications for how contract cases are decided, and how contract law is understood. In this paper, I focus on the radical implications of this doctrine for contract theory. Charles Fried said famously that contracts are promises. But if contracts are promises, why is it that contract law requires not only promise, but after Balfour a further intention, that the promise be legally enforceable? That tension between the promise theory of contract and the intention to create legal relations doctrine has led some to doubt the place of promise in contract. Dori Kimel, for example, says that the doctrine is a portal between the realm of promise, where people are attached, and the realm of contract, where detachment prevails. But such dichotomies are misleading. Contract is not separate from promise. It is one of the ways that promise fulfils its function of giving meaning and shape to human relationships.

Faced with growing pressures for accountability and increasing complexity of legal work, the international legal community has focused attention on support for the rule of law. Taking a workplace perspective, this study develops and tests an individual-level measure of support for the rule of law in the context of the Canadian public sector. Results from a national survey of government-employed lawyers reveal that increasing work demands have a detrimental effect on perceived ability to uphold the rule of law in the daily execution of work tasks. This negative pressure is moderated by social support in the workplace, with diminishing effect. Lawyers in criminal law practice appear more negatively affected by work demands than those in civil or common law practices.

The European Court of Human Rights (ECtHR) and UN Human Rights Committee have reached contradictory decisions in cases concerning the right to manifest religion. This discrepancy calls into question the universality of the right and is problematic from the perspective of legal certainty. Consequently, this article explores the extent to which the diverging decisions of these two bodies are compatible with a good faith interpretation of the right to manifest religion. A good faith interpretation of the right is identified by utilising the travaux préparatoires and subsequent interpretations. It is argued that by failing to scrutinise the necessity of restrictions and the role of secularism, the ECtHR has undermined this good faith interpretation and, in so doing, is not fulfilling its role as ‘the conscience of Europe’.

The Consumer Rights Act 2015 seeks to consolidate in one place key consumer rights covering contracts for goods, services and digital content, and the law relating to unfair terms in consumer contracts. These are areas where there has been considerable activity at both a national and an EU level. In particular, the Consumer Sales Directive 99/44/EC, the Unfair Terms in Consumer Contracts Directive 93/13/EEC and the Consumer Rights Directive 2011/83/EU have all made significant changes to Member State law, promoting the idea of the ‘informed consumer’, able to assert his or her rights in entering consumer contracts. This paper will examine the extent to which the Act promotes the objectives of these Directives and the implications of the result of the June 2016 referendum that the UK should leave the EU. Does the Consumer Rights Act 2015 represent a valuable consolidation of EU and UK consumer policy, or are EU rights being absorbed into a distinctive national framework of consumer rights?