Cambridge Law Journal最新文献

{"title":"AN INVOLUNTARY UNION? SUPREME COURT REJECTS SCOTLAND'S CLAIM FOR UNILATERAL REFERENDUM ON INDEPENDENCE","authors":"A. Sanger, A. L. Young","doi":"10.1017/S0008197323000090","DOIUrl":"https://doi.org/10.1017/S0008197323000090","url":null,"abstract":"IN November 2022, the UK Supreme Court concluded that the Scottish Parliament did not have the competence to enact legislation to hold a second referendum on Scottish independence (Reference by the Lord Advocate of devolution issues under paragraph 34 of Schedule 6 to the Scotland Act 1998 [2022] UKSC 31, [2022] All E.R. (D) 64 (Nov)). That an independence referendum would relate to matters reserved to the UK Parliament, specifically the Union and the Westminster Parliament, is in many senses the least remarkable aspect of the judgment. It does, of course, have important political ramifications for Scotland and the independence movement. From a legal perspective, the case has consequences for UK constitutional law and the relationship between domestic and international law. The reference came to the Supreme Court in a novel manner. The Scotland Act 1998 provides a specific mechanism through which the government Law Officers, both those advising Scotland and the UK, may refer a question to the Supreme Court as to whether Acts of the Scottish Parliament are within competence. According to section 33, such references are made within four weeks of the passing of the Bill through the Scottish Parliament, prior to the Bill receiving royal assent. However, this option was not available as the draft Bill had not yet been laid before the Scottish Parliament. Section 31 of the Scotland Act requires that the person in charge of a Bill states that, in their view, the Bill is within the competence of the Scottish Parliament. The Scottish Ministerial Code requires that any statement must first be cleared by the Scottish Law Officers. However, the Lord Advocate had concluded that, in her opinion, the Bill was not within the competence of the Scottish Cambridge Law Journal, 82(1), March 2023, pp. 1–8 © The Author(s), 2023. Published by Cambridge University Press on behalf of The Faculty of Law, University of Cambridge doi:10.1017/S0008197323000090","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":"82 1","pages":"1 - 8"},"PeriodicalIF":1.5,"publicationDate":"2023-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45712320","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"ETHICAL INVESTMENT BY CHARITY TRUSTEES: SOME ANSWERS, NEW QUESTIONS","authors":"R. Fry","doi":"10.1017/S0008197323000107","DOIUrl":"https://doi.org/10.1017/S0008197323000107","url":null,"abstract":"IN Butler-Sloss v Charity Commission for England and Wales [2022] EWHC 974 (Ch), the High Court confirmed that two charities were entitled to adopt an investment policy which excluded investments deemed to be incompatible with the Paris Agreement, even though this risked reducing the charities’ investment returns. The decision is significant because it establishes that charity trustees have a broader discretion to take ethical and other non-financial considerations into account when exercising their powers of investment than had been previously understood. The judgment provides much needed clarification of the law governing ethical investment, but also poses difficult questions for trustees. The charities concerned were grant-making trusts established for general charitable purposes. Their trustees had chosen to focus the charities’ grant-making on two purposes in particular: the advancement of environmental protection or improvement, and the relief of those in need. The trustees wished to avoid investing the charities’ funds in investments which conflicted, or might conflict, with these purposes, prompting the development of the new investment policy. The policy significantly narrowed the universe of assets from which investments could be selected, which the trustees recognised was likely to result in diminished returns in the short term. For this reason, and because there was widespread uncertainty concerning the reach of the only previous reported case on ethical investment by charity trustees, Harries v Church Commissioners [1992] 1 W.L.R. 1241, the trustees asked the court to make a declaration blessing their decision. In Harries, Sir Donald Nicholls V.-C. held that, when exercising their powers of investment, the “starting point” was to maximise financial return, since “[m]ost charities need money; and the more of it there is available, the more the trustees can seek to accomplish”. However, trustees would be justified in departing from this starting point in certain “comparatively rare” cases, including where the trustees were satisfied that there was a direct conflict between the investment and the charity’s purposes (p. 1246). The trustees in Butler-Sloss claimed that the proposed investment policy fell within this exception; they considered the policy was needed because any investments which did not align with the goals of the Paris Agreement directly conflicted with the charities’ purposes. However, the scope of the direct conflict exception was unclear. Were the trustees required to divest from investments which they considered conflicted with their charity’s purposes, or did they simply have a discretion to do so? What was meant by a conflict in any Cambridge Law Journal, 82(1), March 2023, pp. 9–12 © The Author(s), 2023. Published by Cambridge University Press on behalf of The Faculty of Law, University of Cambridge. doi:10.1017/S0008197323000107","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":"82 1","pages":"9 - 12"},"PeriodicalIF":1.5,"publicationDate":"2023-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48667106","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"SERVICE OUT OF THE JURISDICTION – RAISING SPIRITS?","authors":"A. Dickinson","doi":"10.1017/s0008197323000144","DOIUrl":"https://doi.org/10.1017/s0008197323000144","url":null,"abstract":"","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":"6 1","pages":"25 - 29"},"PeriodicalIF":1.5,"publicationDate":"2023-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"56690648","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"CLJ volume 82 issue 1 Cover and Front matter","authors":"","doi":"10.1017/s0008197323000156","DOIUrl":"https://doi.org/10.1017/s0008197323000156","url":null,"abstract":"","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":"82 1","pages":"f1 - f2"},"PeriodicalIF":1.5,"publicationDate":"2023-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42976215","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"RETHINKING RISK-TAKING: THE DEATH OF VOLENTI?","authors":"Jodi Gardner","doi":"10.1017/S0008197322000915","DOIUrl":"https://doi.org/10.1017/S0008197322000915","url":null,"abstract":"Abstract Volenti non fit injuria allows a negligent defendant to escape liability by showing that the claimant voluntarily and willingly accepted the risk in question. This article combines the theoretical limitations of the volenti defence with a case analysis of how its application has played out in the “real world”, and argues it is not fit for modern tort law. The defence has a controversial and chequered history, being described as a “so-called principle … of little help: indeed, it is confusing, unnecessary, and if we are not careful, it will lead us to the wrong outcome”. It is submitted that volenti is based on unjustified concepts of people agreeing to risks, leads to harmful outcomes and that the defence does not fit with current approaches to tort liability. This article therefore concludes that the harmful outcomes of the volenti defence far exceed any potential benefits provided, and the defence should therefore be abolished.","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":"82 1","pages":"110 - 137"},"PeriodicalIF":1.5,"publicationDate":"2023-01-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43554001","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"CONTRACT AS PROPERTY: TRIANGLES AND TRAGIC CHOICES","authors":"M. J. Crawford","doi":"10.1017/S0008197322000903","DOIUrl":"https://doi.org/10.1017/S0008197322000903","url":null,"abstract":"Abstract According to the “Inadequacy Thesis”, the law's refusal to extend the tort of conversion to interferences with contractual rights is evidence of systemic ossification and proof of its failure to protect the most valuable asset class in the modern economy. Whilst it is true that, like chattels, the benefit of contractual rights can be usurped by third parties, transforming such rights into objects of property is the wrong solution to the problem. This article departs from previous analyses by stressing that the analogue of acts of interference with contractual rights is not the conversion of a chattel but a “triangle dispute”. The problem raised by triangle disputes is not how to reach the primary wrongdoer, but how to allocate the loss between the innocent parties. Invoking the concept of “property” cannot solve this problem. Its efficient solution is to be found in better contracts, not more property.","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":"82 1","pages":"83 - 109"},"PeriodicalIF":1.5,"publicationDate":"2023-01-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48589684","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"JUSTIFYING CONCURRENT CLAIMS IN PRIVATE INTERNATIONAL LAW","authors":"Sagi Peari, Marcus Teo","doi":"10.1017/S0008197322000897","DOIUrl":"https://doi.org/10.1017/S0008197322000897","url":null,"abstract":"Abstract Can claimants choose between contract and tort claims arising on the same facts with different jurisdictional and/or choice-of-law consequences? While domestic legal systems generally recognise concurrent liability, commentators object that its extension to private international law would be unprincipled and would threaten the field's values. This, however, contrasts with the position in common law and under EU Regulations, where concurrent claims are generally recognised with only narrow limits. This article justifies concurrent claims in private international law, arguing that the same premises supporting concurrent liability in domestic law exist in private international law, and that no field-unique concerns foreclose it.","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":"82 1","pages":"138 - 170"},"PeriodicalIF":1.5,"publicationDate":"2023-01-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44458969","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"QUISTCLOSE TRUSTS FROM A CORPORATE INSOLVENCY PERSPECTIVE: A POSITIVE AND NORMATIVE ANALYSIS","authors":"Adam Hofri-Winogradow, Galeano David","doi":"10.1017/S0008197322000514","DOIUrl":"https://doi.org/10.1017/S0008197322000514","url":null,"abstract":"Abstract Leading cases show Quistclose trusts being used by companies nearing insolvency. Their use in this context raises serious normative problems: it may prefer the beneficiary to the company's other creditors, and creates a misleading impression that trust funds are in fact free of trust. Building on the emergent normative literature on Quistclose trusts, we first examine which Quistclose trusts are currently allowed under company law and the law of corporate insolvency. We then discuss the normative question as to which Quistclose trusts should be allowed, given the principles of these branches of the law.","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":"81 1","pages":"524 - 549"},"PeriodicalIF":1.5,"publicationDate":"2022-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44667050","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Paradigms in Modern European Comparative Law: A History. By Balázs Fekete. [Oxford: Hart Publishing, 2021. xvi + 203 pp. Hardback £70.00. ISBN 978-1-50994-692-1.]","authors":"Geoffrey J. Samuel","doi":"10.1017/S0008197322000563","DOIUrl":"https://doi.org/10.1017/S0008197322000563","url":null,"abstract":"that he is Napoleon? Since his claim sits so oddly with his circumstances, we hesitate to treat it as bearing its meaning upon its face. What exactly do the judges mean when they speak of rights and duties? Even if legal rights and duties may generally be viewed as a species of moral right or duty (as Raz claims), this may not be true within a legal system that has manifestly abandoned the pursuit of justice. Might not the obvious injustice of the law drain the vocabulary of its normal moral resonance, converting it into a purely technical language that applies the rules without any claim to justice or moral bindingness? If these interpretative issues could somehow be overcome, a further problem would remain. For, if “claims” can be ascribed to law on the basis of relatively narrow features, independently of the wider context within which those features exist, it is unlikely that any such claims could be regarded as integral to law’s nature. When depicted as depending exclusively upon relatively discrete features abstracted from a wider context, the claims of law come to seem superficial and contingent. Perhaps (as Christoph Kletzer has pointed out) any system of norms (such as the rules of a tennis club) could make the relevant claims, without this affecting the system’s nature in other respects. And, as Finnis has pointed out, a system resembling law in all other respects might choose to make no such claims. Consequently, it could be difficult to treat such claims as essential features of law’s nature. Law does not make claims. But the practices making up a legal order nevertheless express an idea: the idea of law. Those practices are oriented towards the idea of law in much the same way that the relationship of friendship is oriented towards the idea of friendship. Those who are friends value their friendship, and guide their conduct by respect for that value. When they no longer honour the value of friendship, they are no longer friends. Similarly, a system of governance that entirely abandons its concern with justice ceases to be a system of law. For legal thought must be guided by the idea of law, and that is an idea that is intimately bound to justice. In this imperfect world, the demands of legality and of justice may sometimes conflict. But, nevertheless, each is fully attainable only in conjunction with the other. Substantial departures from justice (falling outside the range of good faith moral disagreement but not amounting to a wholesale abandonment of justice as an aspiration) can seriously detract from legality. In such contexts, to honour the value of law, one must sometimes apply the Radbruch formula.","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":"81 1","pages":"679 - 684"},"PeriodicalIF":1.5,"publicationDate":"2022-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41605781","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"TORTIOUS LIABILITY OF GOVERNMENT MINISTERS FOR CLIMATE CHANGE: ARISTOTELIAN POTENTIAL AND THE LIMITS OF NEGLIGENCE","authors":"Stevie Martin","doi":"10.1017/S0008197322000733","DOIUrl":"https://doi.org/10.1017/S0008197322000733","url":null,"abstract":"uncertainty. Reform, however, does not mean starting from scratch. Even the adoption of the first (more expansive) option would not land English law in uncharted territory; instead, it would return it to the position espoused by Lord Bridge in McLoughlin. What is more, previous decisions can be rationalised within the adopted framework (or discarded as incompatible with it) to offer guidance on how it applies in particular situations. And while certainty is important, it is not the only desideratum; the aim in developing the law of negligence is to balance the need to maintain certainty with the need to achieve justice (Robinson v Chief Constable of West Yorkshire [2018] UKSC 4, at [27] (Lord Reed)). In this connection, were the first approach to be adopted, it is paramount that it does not result in a mechanical application of the factors guiding reasonable foreseeability, otherwise they would simply transform from overt to covert control mechanisms, robbing the approach of its flexibility. Finally, should such reform not be left to Parliament? There are good reasons why courts might generally take that course. Judges have no relevant expertise or easy access to the sort of material that informs legislative policy making. Nonetheless, the case for deferring to Parliament in this area is less strong. The law with its policy restrictions has been exclusively developed by the courts. Much preparatory work has been done by the Law Commission. Parliament has not only repeatedly failed to act, but the Government has taken the view that the development of the law is best left to the courts (Department for Constitutional Affairs, The Law of Damages (CP 9/07), 2007). Pleas from judges, the Law Commission and individual Members of Parliament have fallen on deaf legislative ears. In these circumstances, expecting Parliament to act is a pious hope. The ball is now firmly in the Supreme Court’s court. It is hoped that it will pick it up and bring the law into line with contemporary societal and medical perceptions. It will no doubt be tempting to conclude again that legislation is the best, perhaps the only, option for reform. Tempting, but wrong.","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":"81 1","pages":"456 - 460"},"PeriodicalIF":1.5,"publicationDate":"2022-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42735558","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}