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The End of Innocence: Open Justice, Free Speech and Privacy in the Modern Constitution – Khuja (Formerly PNM) V Times Newspapers Limited 《纯真的终结:现代宪法中的公开正义、言论自由和隐私》-库贾(原PNM) V Times Newspapers Limited
Wiley-Blackwell: Modern Law Review Pub Date : 2019-01-01 DOI: 10.1111/1468-2230.12391
R. Craig
{"title":"The End of Innocence: Open Justice, Free Speech and Privacy in the Modern Constitution – Khuja (Formerly PNM) V Times Newspapers Limited","authors":"R. Craig","doi":"10.1111/1468-2230.12391","DOIUrl":"https://doi.org/10.1111/1468-2230.12391","url":null,"abstract":"This case note explores the issue of open justice considered by Khuja (formerly PNM) v Times Newspapers Limited in the Supreme Court and argues that the current law is confused and incoherent. Far from settling the debate, it is suggested that the decision further undermines some of the key assumptions underpinning the current approach, especially in the light of the compelling and humane minority judgment. This leaves the area ripe for reconsideration in general terms. This note challenges many of the formulaic slogans and rhetoric in previous case law as well as suggesting that the meaning of open justice has been lost in current discourse. After summarising the facts, this note sets out the majority and minority judgments, before analysing some of the conceptual difficulties raised – particularly those of open justice, privacy, presumption of innocence and freedom of speech.","PeriodicalId":426546,"journal":{"name":"Wiley-Blackwell: Modern Law Review","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115195944","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: 0
Protecting Free Speech and Academic Freedom in Universities 保护大学的言论自由和学术自由
Wiley-Blackwell: Modern Law Review Pub Date : 2018-08-31 DOI: 10.1111/1468-2230.12366
I. Cram, H. Fenwick
{"title":"Protecting Free Speech and Academic Freedom in Universities","authors":"I. Cram, H. Fenwick","doi":"10.1111/1468-2230.12366","DOIUrl":"https://doi.org/10.1111/1468-2230.12366","url":null,"abstract":"This article interrogates restrictions on speaking events in universities created both by recent student-led efforts at ‘no-platforming’ and by Part 5 of the Counter-terrorism and Security Act 2015 which placed aspects of the government’s existing Prevent strategy on a statutory basis for the first time. The statutory Prevent duty as it applies in universities includes, under the accompanying Guidance, curbing or monitoring such events on the basis that they could have an impact in drawing persons into terrorism. This article will place the combined impact of Part 5 and student-led curbs on campus speech in context by juxtaposing a range of pre-existing restrictions with the various free speech duties of universities. Focusing on speaking events, it sets out to evaluate the results of this chequered situation in terms of the current state of free speech and academic freedom in universities. It finds potential violations of established free speech norms due to the impact of pre-emptive strikes against some campus-linked speech articulating non-mainstream viewpoints. But it also argues that not all such speech has a strong foundation within such norms.","PeriodicalId":426546,"journal":{"name":"Wiley-Blackwell: Modern Law Review","volume":"49 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123642755","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: 5
The Material Constitution 物质构成
Wiley-Blackwell: Modern Law Review Pub Date : 2018-07-01 DOI: 10.1111/1468-2230.12352
M. Goldoni, Michael A. Wilkinson
{"title":"The Material Constitution","authors":"M. Goldoni, Michael A. Wilkinson","doi":"10.1111/1468-2230.12352","DOIUrl":"https://doi.org/10.1111/1468-2230.12352","url":null,"abstract":"What is the material context of constitutional order? The purpose of this paper is to offer an answer to that question by sketching a theory of the material constitution. Distinguishing it from related approaches, in particular sociological constitutionalism, Marxist constitutionalism, and political jurisprudence, the paper outlines the basic elements of the material constitution, specifying its four ordering factors. These are political unity, the dominant form of which remains the modern nation-state; a set of institutions, including but not limited to formal governmental branches such as courts, parliaments, executives, administrations; a network of social relations, including class interests and social movements, and a set of fundamental political objectives (or teloi). These factors provide the material substance and internal dynamic of the process of constitutional ordering. They are not external to the constitution but are a feature of juristic knowledge, standing in internal relation and tension with the formal constitution. Because these ordering factors are multiple, and in conflict with one another, there is no single determining factor of constitutional development. Neither is order as such guaranteed. The conflict that characterizes the modern human condition might but need not be internalised by the process of constitutional ordering. The theory of the material constitution offers an account of the basic elements of this process as well as its internal dynamic.","PeriodicalId":426546,"journal":{"name":"Wiley-Blackwell: Modern Law Review","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132173223","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: 79
Equality Law and the Protected Characteristics 平等法与受保护的特征
Wiley-Blackwell: Modern Law Review Pub Date : 2018-07-01 DOI: 10.1111/1468-2230.12353
K. Malleson
{"title":"Equality Law and the Protected Characteristics","authors":"K. Malleson","doi":"10.1111/1468-2230.12353","DOIUrl":"https://doi.org/10.1111/1468-2230.12353","url":null,"abstract":"UK anti‐discrimination law is founded on a grounds‐based system of protected characteristics. For this system to function as a legitimate and workable legal framework the characteristics must satisfy three conditions: they must have some definitional and categorical stability, they must broadly reflect people's understanding of social reality and lived experiences and they must align with the most significant axes of discrimination in society. This article argues that all three conditions are becoming increasingly difficult to satisfy as a result of dramatic shifts in social configurations of identity and the ongoing failure to include socio‐economic status as a legally protected characteristic. The future of the legislative framework may depend on the willingness of courts and policy‐makers to adopt a more context‐based approach to the protected characteristics. This would require them to interrogate claims of individual instances of discrimination in the context of wider, but also more particular substantive group disadvantage.","PeriodicalId":426546,"journal":{"name":"Wiley-Blackwell: Modern Law Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129224878","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: 12
Restoring Confidence: Replacing the Fixed‐Term Parliaments Act 201 恢复信心:取代《201年固定任期议会法案》
Wiley-Blackwell: Modern Law Review Pub Date : 2018-05-01 DOI: 10.1111/1468-2230.12342
R. Craig
{"title":"Restoring Confidence: Replacing the Fixed‐Term Parliaments Act 201","authors":"R. Craig","doi":"10.1111/1468-2230.12342","DOIUrl":"https://doi.org/10.1111/1468-2230.12342","url":null,"abstract":"This article considers both the Fixed‐term Parliaments Act 2011 (FTPA) and the political constitution, to place the former in its political and constitutional context. It begins by setting out the background to the FTPA – which was a part of a Coalition agreement – and considers difficulties with the most commonly‐made arguments in favour of fixed‐term parliaments. The second part of the article considers the impact and potential practical legal consequences if the FTPA is repealed without any replacement, arguing that it will only be possible to revive the ‘dissolution’ prerogative by express words in a new Act. The final part of the article addresses the question of whether the prerogative should be revived, before arguing both that it should not and that a statutory power to call an election should be conferred on the Prime Minister subject to a vote by simple majority in the House of Commons.","PeriodicalId":426546,"journal":{"name":"Wiley-Blackwell: Modern Law Review","volume":"100 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122610464","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: 0
We All Make Mistakes: A ‘Duty of Virtue’ Theory of Restitutionary Liability for Mistaken Payments 我们都会犯错:错误支付赔偿责任的“美德义务”理论
Wiley-Blackwell: Modern Law Review Pub Date : 2018-03-01 DOI: 10.1111/1468-2230.12327
J. E. Penner
{"title":"We All Make Mistakes: A ‘Duty of Virtue’ Theory of Restitutionary Liability for Mistaken Payments","authors":"J. E. Penner","doi":"10.1111/1468-2230.12327","DOIUrl":"https://doi.org/10.1111/1468-2230.12327","url":null,"abstract":"In contrast to the moral foundations of contract, tort, and the law of property, which are generally regarded as elements of Kantian ‘right’, the liability to return the value of mistaken payments is, it is argued, an example of the law's enforcing a duty of virtue, the legalisation of the duty of beneficence in a way similar (though not identical) to how the law might instantiate a duty of easy rescue. Accordingly, one of Birks's most cherished theses – that the law of unjust enrichment represents a distinctive element of private law – can be made out: it is distinctive in having an entirely different normative source: in virtue, not in right. But this result comes at a cost: (1) a legal system could function more or less justly without such a liability; (2) Birks's thesis that liability for mistaken payment is the archetype or paradigmatic case of liability for unjust enrichment would have to be abandoned; and (3) we would have to recognise that the ground of this liability is policy-motivated.","PeriodicalId":426546,"journal":{"name":"Wiley-Blackwell: Modern Law Review","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129779018","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: 1
The Dynamics of Enduring Property Relationships in Land 土地持久财产关系的动态
Wiley-Blackwell: Modern Law Review Pub Date : 2018-01-01 DOI: 10.1111/1468-2230.12317
S. Blandy, Susan Bright, Sarah Ann Nield
{"title":"The Dynamics of Enduring Property Relationships in Land","authors":"S. Blandy, Susan Bright, Sarah Ann Nield","doi":"10.1111/1468-2230.12317","DOIUrl":"https://doi.org/10.1111/1468-2230.12317","url":null,"abstract":"This article proposes a new way of looking at property relationships that will enrich our understanding of how they operate. It focuses on property rights in land which are consensual in origin, although this approach could usefully be applied both to non-consensual property relationships and to other property types. Recognising both the temporal and spatial dimensions of land, the dynamics approach reflects the fact that most property relationships are lived relationships, affected by changing patterns and understandings of spatial use, relationship needs, economic realities, opportunities, technical innovations, and so on. Although evolving responsively to accommodate changing uses and new rights-holders, these relationships are nevertheless sustained and enduring. The dynamics lens acknowledges the diverse range of legal, regulatory, social and commercial norms that shape property relations. Our approach also explores how far the enduring, yet dynamic, nature of property relations is taken into account by a range of decision-makers.","PeriodicalId":426546,"journal":{"name":"Wiley-Blackwell: Modern Law Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132573160","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
On the Relations between Agent and Principal: Angove's Pty Ltd v Bailey 论代理人与委托人的关系:安格夫有限公司诉贝利案
Wiley-Blackwell: Modern Law Review Pub Date : 2018-01-01 DOI: 10.1111/1468-2230.12320
J. Grower
{"title":"On the Relations between Agent and Principal: Angove's Pty Ltd v Bailey","authors":"J. Grower","doi":"10.1111/1468-2230.12320","DOIUrl":"https://doi.org/10.1111/1468-2230.12320","url":null,"abstract":"In Angove's Pty Ltd v Bailey the Supreme Court faced ‘two important and controversial questions of commercial law’: whether an agent's authority could ever be ‘irrevocable’, and whether the receipt of money by an imminent insolvent could ever give rise to a constructive trust of that sum. It answered both in the affirmative, albeit subject to heavy qualifications. This note supports these conclusions in principle, however it will argue that the court's reasoning, especially in answering the second question, leaves much to be desired. In particular, it ignored the central role of fiduciary law in regulating the conduct of agents.","PeriodicalId":426546,"journal":{"name":"Wiley-Blackwell: Modern Law Review","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121498233","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: 0
Frozen Corpses and Feuding Parents: Re JS (Disposal of Body) 冰冻的尸体和不和的父母:Re JS(尸体的处理)
Wiley-Blackwell: Modern Law Review Pub Date : 2018-01-01 DOI: 10.1111/1468-2230.12319
Heather Conway
{"title":"Frozen Corpses and Feuding Parents: Re JS (Disposal of Body)","authors":"Heather Conway","doi":"10.1111/1468-2230.12319","DOIUrl":"https://doi.org/10.1111/1468-2230.12319","url":null,"abstract":"In October 2016, a dying teenager won the legal right to have her remains cryogenically frozen and stored indefinitely in an American clinic. The cryonics aspect was novel, posing questions around the legality of this particular method of corpse ‘disposal’ in the UK and the processes involved. More significantly, the case raises other substantive legal issues around the fate of the dead, including the status of funeral instructions under English law, and how courts adjudicate parental disputes over the funeral arrangements for a dead child.","PeriodicalId":426546,"journal":{"name":"Wiley-Blackwell: Modern Law Review","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126835307","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
Devotion to Legalism: On the Brexit Case 忠于法家:论英国脱欧案
Wiley-Blackwell: Modern Law Review Pub Date : 2017-07-01 DOI: 10.1111/1468-2230.12280
T. Poole
{"title":"Devotion to Legalism: On the Brexit Case","authors":"T. Poole","doi":"10.1111/1468-2230.12280","DOIUrl":"https://doi.org/10.1111/1468-2230.12280","url":null,"abstract":"This note examines the UK Supreme Court's judgment in the Brexit case, Miller v Secretary of State for Exiting the European Union. The case upheld the decision of the High Court, which rejected the claim that the foreign affairs prerogative provided a legal basis for giving notice to EU institutions of the UK's intention to withdraw from the EU. But the Supreme Court's preferred basis for dismissing that claim rested on the more general proposition that significant constitutional change can only be effected by statute. This position offers the germs of a jurisprudence of constitutional change and was substantiated by means of an analysis of Parliament's dual capacity as legislator and constituent agent. Miller also includes important and potentially innovative dicta on the relationship between international and domestic sources of law.","PeriodicalId":426546,"journal":{"name":"Wiley-Blackwell: Modern Law Review","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129255351","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: 9
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