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The Great Illusion: Tort Law and Exposure to Danger of Physical Harm 大幻觉:侵权法与人身伤害的危险
Wiley-Blackwell: Modern Law Review Pub Date : 2009-10-21 DOI: 10.1111/j.1468-2230.2009.00774.x
Emmanuel Voyiakis
{"title":"The Great Illusion: Tort Law and Exposure to Danger of Physical Harm","authors":"Emmanuel Voyiakis","doi":"10.1111/j.1468-2230.2009.00774.x","DOIUrl":"https://doi.org/10.1111/j.1468-2230.2009.00774.x","url":null,"abstract":"In the aftermath of Gregg v Scott and Johnston v NEI, it is commonly thought that claims for exposure to danger of physical harm are not independently compensatable in English law. I argue that this assumption is doubly mistaken. On the one hand, claimants exposed to danger of physical harm have a compelling argument of principle for the recovery of any significant increase in the cost of their options for dealing with the carelessly heightened danger to their physical health. On the other hand, that argument of principle is not blocked by Gregg, or other cases in the line of precedent consolidated in that decision. Properly construed, the rejection of the plaintiff's claims in Gregg and Johnston is consistent with a right of recovery for significant costs following from careless exposure to danger of physical harm.","PeriodicalId":426546,"journal":{"name":"Wiley-Blackwell: Modern Law Review","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-10-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131182185","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 3
Problems with the Human Rights Act 1998 and How to Remedy Them: Is a Bill of Rights the Answer? 1998年《人权法案》存在的问题及其补救方法:《权利法案》能解决问题吗?
Wiley-Blackwell: Modern Law Review Pub Date : 2009-10-21 DOI: 10.1111/J.1468-2230.2009.00773.X
M. Amos
{"title":"Problems with the Human Rights Act 1998 and How to Remedy Them: Is a Bill of Rights the Answer?","authors":"M. Amos","doi":"10.1111/J.1468-2230.2009.00773.X","DOIUrl":"https://doi.org/10.1111/J.1468-2230.2009.00773.X","url":null,"abstract":"Recently there has been much discussion of the prospect of replacing, or supplementing, the Human Rights Act 1998 (HRA) with a British bill of rights. The Government, opposition Conservative Party and others have published detailed plans and research reports. Whilst there has been some limited examination of the alleged failures of the HRA in providing effective legal protection for human rights, the debate has not been accompanied by a thorough examination of these types of problems with the HRA, free from political criticisms. Drawing on research concerning aspects of the HRA carried out over the past ten years, it is possible to identify concrete problems which have prevented the HRA from meeting the objectives originally set for it. But given the limitations of the present debate, future plans do not adequately address many of these problems making it uncertain how effective any new bill of rights will actually be.","PeriodicalId":426546,"journal":{"name":"Wiley-Blackwell: Modern Law Review","volume":"116 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-10-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131471106","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 10
Hopes, Expectations and Revocable Promises in Proprietary Estoppel 专利禁止反悔中的希望、期望和可撤销承诺
Wiley-Blackwell: Modern Law Review Pub Date : 2009-10-21 DOI: 10.1111/j.1468-2230.2009.00778.x
Nick Piška
{"title":"Hopes, Expectations and Revocable Promises in Proprietary Estoppel","authors":"Nick Piška","doi":"10.1111/j.1468-2230.2009.00778.x","DOIUrl":"https://doi.org/10.1111/j.1468-2230.2009.00778.x","url":null,"abstract":"This note dicusses the House of Lords' decisions in Cobbe v Yeoman's Row Management Ltd (Cobbe) and Thorner v Major (Thorner) regarding the nature and scope of proprietary estoppel. It considers the historical development of the modern law of proprietary estoppel, the circumstances in which equity will render a promise irrevocable, and the role of context in the ascription of responsibility.","PeriodicalId":426546,"journal":{"name":"Wiley-Blackwell: Modern Law Review","volume":"190 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-10-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114402321","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 2
Historicising Criminalisation: Conceptual and Empirical Issues 刑事定罪的历史化:概念和经验问题
Wiley-Blackwell: Modern Law Review Pub Date : 2009-10-21 DOI: 10.1111/j.1468-2230.2009.00775.x
N. Lacey
{"title":"Historicising Criminalisation: Conceptual and Empirical Issues","authors":"N. Lacey","doi":"10.1111/j.1468-2230.2009.00775.x","DOIUrl":"https://doi.org/10.1111/j.1468-2230.2009.00775.x","url":null,"abstract":"This paper charts a renaissance in scholarly analysis of criminalisation, and suggests that we do not have the conceptual tools or empirical knowledge to make the claims about `overcriminalisation' which motivate much of this scholarship. My argument gives further shape to projects under the umbrella of criminalisation, setting out some of the conceptual issues to be resolved before we can work towards an adequate interpretive, and normative, vision of how criminal law has been and might be used. The paper elaborates a number of projects in `criminalisation scholarship', and suggests there is a failure adequately to distinguish the different senses of `criminalisation' in the literature, or the varying methods which might be applied within historical, interpretive, analytic and normative studies of criminalisation. In conclusion, the paper argues for a certain genre of criminalisation scholarship, and for a multi-disciplinary criminalisation research agenda informed by history, sociology and political science as much as by law, criminology and philosophy.","PeriodicalId":426546,"journal":{"name":"Wiley-Blackwell: Modern Law Review","volume":"83 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-10-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134243989","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 57
How to Make a Terrorist Out of Nothing 如何从无到有制造恐怖分子
Wiley-Blackwell: Modern Law Review Pub Date : 2009-10-21 DOI: 10.1111/j.1468-2230.2009.00777.x
J. Hodgson, Victor Tadros
{"title":"How to Make a Terrorist Out of Nothing","authors":"J. Hodgson, Victor Tadros","doi":"10.1111/j.1468-2230.2009.00777.x","DOIUrl":"https://doi.org/10.1111/j.1468-2230.2009.00777.x","url":null,"abstract":"Rv G concerns the controversial offence of collecting or recording information likely to be useful to a person committing or preparing an act of terrorism. We comment on a number of deficiencies in that judgment and investigate the proper approach that ought to be taken to that offence under the Human Rights Act 1998.","PeriodicalId":426546,"journal":{"name":"Wiley-Blackwell: Modern Law Review","volume":"100 3","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-10-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133070918","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 13
Negligence, Public Bodies, and Ruthlessness 疏忽、公共机构和无情
Wiley-Blackwell: Modern Law Review Pub Date : 2009-10-21 DOI: 10.1111/j.1468-2230.2009.00776.x
R. Mullender
{"title":"Negligence, Public Bodies, and Ruthlessness","authors":"R. Mullender","doi":"10.1111/j.1468-2230.2009.00776.x","DOIUrl":"https://doi.org/10.1111/j.1468-2230.2009.00776.x","url":null,"abstract":"The Law Commission has concluded in a recent consultation paper (‘Administrative Redress’) that claimants are able to sue public bodies successfully in negligence in an unacceptably wide range of circumstances. For this reason, it has proposed the introduction of a new touchstone of liability: ‘serious fault’. The Law Commission regards the liability regime it proposes as superior to the existing law since it would reduce the number of occasions on which claimants deflect public bodies from their core concerns (delivering goods and services that serve the public interest). The Law Commission also finds support for its proposal in a ‘principle of modified corrective justice’. On the analysis offered in this essay, the requirement of ‘serious fault’ is better understood as strengthening a commitment to ruthlessness (in the sense specified by Thomas Nagel) that is present in the existing law. This essay also argues for a reform of negligence law (as it applies to public bodies) that is very different from that proposed by the Law Commission. This is the application of the proportionality principle at the third stage of the duty of care test in Caparo Industries plc v Dickman. More generally, this essay criticises the Law Commission on the ground that it assumes that public bodies have sufficient information to perform a wide range of tasks effectively. This is often not the case. Moreover, negligence law in its existing form is a (non-market) discovery-procedure by means of which public bodies can, when defending novel claims, become better acquainted with the environment in which they operate.","PeriodicalId":426546,"journal":{"name":"Wiley-Blackwell: Modern Law Review","volume":"151 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-10-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116089523","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 3
The Mortgage Arrears Pre-Action Protocol: An Opportunity Lost 按揭欠款诉讼前协议：错失良机
Wiley-Blackwell: Modern Law Review Pub Date : 2009-09-01 DOI: 10.1111/j.1468-2230.2009.00768.x
Lisa Whitehouse
{"title":"The Mortgage Arrears Pre-Action Protocol: An Opportunity Lost","authors":"Lisa Whitehouse","doi":"10.1111/j.1468-2230.2009.00768.x","DOIUrl":"https://doi.org/10.1111/j.1468-2230.2009.00768.x","url":null,"abstract":"In February 2008, the Civil Justice Council circulated for consultation a mortgage arrears pre-action protocol that proposed some of the most radical and significant reforms of the repossession process for a century. Hinting at a return to the equitable tradition, the draft protocol required a minimum level of equitable dealing within the mortgage relationship coupled with the restriction and, at times, exclusion of the lender's inherent right to possession. The version which emerged following the period of consultation, however, bore little if any resemblance to its predecessor. The Pre-Action Protocol for Possession Claims Based on Mortgage or Home Purchase Plan Arrears in Respect of Residential Property attempts no alteration of the parties' existing rights and obligations and seeks merely to encourage rather than compel lenders to view repossession as a last resort. To this extent, therefore, it represents an opportunity lost to afford borrowers greater protection within the repossession process.","PeriodicalId":426546,"journal":{"name":"Wiley-Blackwell: Modern Law Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129689893","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 8
In Defence of Due Deference 为正当的服从辩护
Wiley-Blackwell: Modern Law Review Pub Date : 2009-07-01 DOI: 10.1111/j.1468-2230.2009.00757.x
A. L. Young
{"title":"In Defence of Due Deference","authors":"A. L. Young","doi":"10.1111/j.1468-2230.2009.00757.x","DOIUrl":"https://doi.org/10.1111/j.1468-2230.2009.00757.x","url":null,"abstract":"The doctrine of deference permeates human rights review. It plays a role in defining Convention rights, in determining the nature of the proportionality test applied when analysing non-absolute rights, as well as in deciding the stringency of its application. The role of deference has recently been subjected to both judicial and academic criticism, some of which advocates the demise of the doctrine. This article develops a contextual account of deference that is justified for epistemic reasons, rather than reasons of relative authority. This conception is able to withstand current criticism and is modest enough to play a role in a range of different justifications and understandings of judicial review under the Human Rights Act. The article then provides a more detailed account of deference, taking account of the relative institutional features of the legislature, executive and judiciary, without running the risk that the court fails to perform its constitutional function of protecting individual rights.","PeriodicalId":426546,"journal":{"name":"Wiley-Blackwell: Modern Law Review","volume":"42 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126536332","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 26
Contractual Limitations on the Auditor's Liability: An Uneasy Combination of Law and Accounting 审计责任的合同限制:法律与会计的不稳定结合
Wiley-Blackwell: Modern Law Review Pub Date : 2009-07-01 DOI: 10.1111/j.1468-2230.2009.00759.x
P. Morris
{"title":"Contractual Limitations on the Auditor's Liability: An Uneasy Combination of Law and Accounting","authors":"P. Morris","doi":"10.1111/j.1468-2230.2009.00759.x","DOIUrl":"https://doi.org/10.1111/j.1468-2230.2009.00759.x","url":null,"abstract":"Operative as from 6 April 2008, sections 532–538 of the Companies Act 2006 create a new liability limitation regime in contractual relationships between audit firms and companies in relation to the statutory audit function which overturns an almost eighty years old fundamental principle of company law. This new regime is the product of continuing pressure by the audit profession for liability reform and concern by Government regarding the market structure for audit services. This commentary critically evaluates the regime from law and accounting perspectives. It concludes by reflecting on its longer term implications for audit quality, perceptions of the audit profession and the evolution of a future research agenda.","PeriodicalId":426546,"journal":{"name":"Wiley-Blackwell: Modern Law Review","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116677958","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 2
Legislating Against Climate Change: A UK Perspective on a Sisyphean Challenge 立法应对气候变化:英国对西西弗斯挑战的看法
Wiley-Blackwell: Modern Law Review Pub Date : 2009-05-01 DOI: 10.1111/j.1468-2230.2009.00752.x
M. Stallworthy
{"title":"Legislating Against Climate Change: A UK Perspective on a Sisyphean Challenge","authors":"M. Stallworthy","doi":"10.1111/j.1468-2230.2009.00752.x","DOIUrl":"https://doi.org/10.1111/j.1468-2230.2009.00752.x","url":null,"abstract":"The UK's Climate Change Act offers a framework for civil society to achieve ‘low carbon’ realignment through to 2050. The Act is reviewed for its coherence as a mechanism for directing future policy. The legislation establishes a carbon budgetary process, mandates greenhouse gas reduction targets and strategies, and imposes a novel range of duties supported by processes for ensuring transparency concerning progress. Following an overview of climate change risks and likely economic consequences, the analysis identifies selected regulatory strategies. It explores the main statutory features, with an emphasis upon the implications of imposing mandatory duties on decision makers. An evaluation of the key policy choice of emissions trading is informed by perspectives of environmental justice, in particular as to questions of equitable burden-sharing in relation to impacts of climate change and related policies. A concluding section summarises reasonable expectations and ongoing challenges.","PeriodicalId":426546,"journal":{"name":"Wiley-Blackwell: Modern Law Review","volume":"80 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116479616","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 19
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