Cambridge Law Journal最新文献

{"title":"Criminalizing Sex: A Unified Liberal Theory. By Stuart P. Green. [Oxford University Press, 2020. xxvi + 382 pp. Hardback £22.99. ISBN 978-0-197-50748-3.]","authors":"M. Gibson","doi":"10.1017/S0008197322000538","DOIUrl":"https://doi.org/10.1017/S0008197322000538","url":null,"abstract":"scious copying or in determining whether substantial part is taken, is unclear. Goold goes on to discuss the various stages at which the negligence liability should be introduced, such as licensing, infringement, defences, and remedies (pp. 97–105). The difference between introducing negligence liability into the infringement doctrine and the defences is one of burden of proof, and Goold seems to falter on this point. If IP infringement is to remain truly a negligence-based liability, the primary burden of proof to establish negligence must rest on the person claiming negligence, i.e. the IP owner (usually the claimant). On the other hand, if exercising due care (i.e. the lack of negligence) were to be available as a defence, then the burden of proof would rest on the person claiming that due care was exercised, which is the user (normally the defendant). Goold recognises that in ordinary negligence, the reasonable care and therefore, negligence analysis features within the prima facie case being established (p. 99). This appears to suggest that the burden of proof is on the IP owner to prove a prima facie case by showing that the user’s lack of care led to an IP right being infringed. However, he goes on to argue that if the IP owner establishes a prima facie case of infringement (i.e. that the user copied the work or used the patented invention), then a rebuttable presumption in favour of liability would operate, and only if the user introduces evidence that she exercised all reasonable care should the court not hold her liable (p. 100). This appears to suggest that in infringement cases the burden of proof rests entirely on the user to prove that she took all reasonable care, as if it were a defence rather than a component of the tort of infringement itself. A more coherent exposition of the burden of proof would have helped. It appears to make sense to place the burden on the IP owner from an efficiency viewpoint. If the IP owner is the one bearing the burden of proving that reasonable care was not exercised, then the IP owner will be more cautious in ensuring that their valuable creations are registered where possible, and bear the appropriate markings, making their rights discoverable. In summary, however, Goold’s work is a bold effort in addressing an extremely complex area of law, presented in an historical context, enriched by arguments of economic efficiency. Situated at the intersection of IP and private law, Goold’s work is remarkable in demonstrating the role of core doctrines of private law in addressing some of the most pressing issues in IP.","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2022-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43782571","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":null,"pages":null},"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}

{"title":"CUSTODIAL DUTIES IN THE COURT OF APPEAL","authors":"J. Russell","doi":"10.1017/S0008197322000782","DOIUrl":"https://doi.org/10.1017/S0008197322000782","url":null,"abstract":"","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2022-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48971717","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":"EXCLUSIVE JURISDICTION IN PATENT ENTITLEMENT AND OWNERSHIP DISPUTES UNDER THE RECAST BRUSSELS I REGULATION","authors":"Maxence Rivoire","doi":"10.1017/S0008197322000800","DOIUrl":"https://doi.org/10.1017/S0008197322000800","url":null,"abstract":"difficult to identify. The complexity in this area has been furthered in recent years through the introduction of various public policy exceptions to Rule 3, which Sir Julian Flaux C. in Solo Capital Partners suggested should be extended to major international fraud (at [146]). As a result of these exceptions, the rule does not apply in some instances where any plausible rationale for it would suggest it should. All this complexity suggests that, if there is some simpler mechanism by which the same outcomes can be achieved, there may be good reasons to abandon Rule 3. The doctrine of forum non conveniens might be that simpler mechanism. Where a claim is brought before an English court, the court can decline to exercise its jurisdiction where a different forum is clearly and distinctly more appropriate for the trial of the dispute. The objection to the availability of the English forum in most cases in which reliance on Rule 3 has been successful is that such claims should properly be brought in the courts of the countries the law of which the claimant is trying to enforce. Channelling this reasoning through forum non conveniens would help rationalise the haphazard applicability of Rule 3.","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2022-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49004663","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 81 issue 3 Cover and Back matter","authors":"Johan David Michels","doi":"10.1017/s0008197322000617","DOIUrl":"https://doi.org/10.1017/s0008197322000617","url":null,"abstract":"","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2022-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46158276","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":"AN EXCEPTION TO DIPLOMATIC IMMUNITY FOR CLAIMS INVOLVING MODERN SLAVERY","authors":"B. Plant","doi":"10.1017/S0008197322000836","DOIUrl":"https://doi.org/10.1017/S0008197322000836","url":null,"abstract":"","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2022-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44956806","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":"INSANITY AND COMMAND DELUSIONS","authors":"M. Grainger","doi":"10.1017/S0008197322000769","DOIUrl":"https://doi.org/10.1017/S0008197322000769","url":null,"abstract":"","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2022-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49223897","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":"LIGHTS, CAMERA, NO ACTION: THE INTERFACE BETWEEN CONTRACT LAW AND UNJUST ENRICHMENT","authors":"Aarushi Sahore","doi":"10.1017/S0008197322000824","DOIUrl":"https://doi.org/10.1017/S0008197322000824","url":null,"abstract":"for itself the question of proportionality and necessity in care proceedings cases (Re B, at [116]–[127] (Lord Kerr J.S.C.), [204]–[205] (Lady Hale J.S.C.)) should be preferred. In line with this, it would have been better if the Supreme Court had undertaken its own proportionality assessment on the facts of Re H-W and made supervision orders instead of remitting the case for rehearing before a different judge (at [64]). Doing so would avoid delays in settling arrangements for the family involved and uphold the “central principle of the Children Act 1989” that delays are not in the children’s interests (J. Doughty, “Remote Justice – Family Court Hearings during the Pandemic” (2020) 42(3) Journal of Social Welfare and Family Law 377, 377). At the end of the day, there is no doubt that Re H-W was “a difficult case” (at [28]). Indeed, decisions made for the removal of children into public care have profound effects and should be carefully scrutinised (at [32]). However, the appellate court’s approach should, as far as possible, strike a balance with the avoidance of delays in the interests of the children’s welfare. Whilst the Supreme Court acknowledged that the perspectives of both the majority and the minority of the Court of Appeal were “understandable in family law terms” (at [32]), it ultimately concluded that the proportionality assessment at first instance was flawed (at [62]) but nonetheless declined to undertake its own assessment (at [63]). With the case being remitted for rehearing before a different judge, one can only hope that it will not be “a lengthy process” before arrangements are finally settled for the family involved (at [64]).","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2022-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42754667","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":"The Law of Tracing. By Mohammud Jaamae Hafeez-Baig and Jordan English. [Alexandria, NSW: The Federation Press, 2021. xxi + 276 pp. Hardback $180.00. ISBN 978-1-76002-306-5.]","authors":"Derek Whayman","doi":"10.1017/S0008197322000587","DOIUrl":"https://doi.org/10.1017/S0008197322000587","url":null,"abstract":"1990s) is one where comparativists like Legrand have broken free of the authority paradigm. And so, what Fekete claims to be doing is applying a “light” version of Kuhn’s theory, thus avoiding the problem of incommensurability between competing paradigms. What Kuhn offers, says Fekete, is “a conceptual vocabulary to tame the complexity of scholarly development” (p. 164). Yet it is not evident that he really needs this vocabulary. His five “paradigm” periods would be just as understandable if he were to use the vocabulary of social science – programmes, schemes of intelligibility, poles and orientations – and it (they) would surely suffice as a framework for his excellent discussion of the comparatists he regards as key in the history of comparative law. To employ Kuhn suggests that law is a science in the natural science meaning of the term; this is something that a good many comparatists would not just contest but see as very dangerous.","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2022-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41676618","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":"A RIDDLE WRAPPED IN AN ENIGMA: ASSUMPTION OF RESPONSIBILITY, AGAIN","authors":"Jonathan H. Morgan","doi":"10.1017/S000819732200071X","DOIUrl":"https://doi.org/10.1017/S000819732200071X","url":null,"abstract":"THE most troublesome question in negligence today remains omissions liability. The central “exception” is when a defendant assumes responsibility to take positive, protective action – notwithstanding assumption of responsibility’s cursory (even dismissive) treatment in the seminal Michael v Chief Constable [2015] UKSC 2, [2015] A.C. 1732. It was a safe prediction that more disputes about its meaning and application would engage the appellate courts. And now, following closely on Tindall v Chief Constable [2022] EWCA Civ 25 (noted Morgan [2022] C.L.J. 245), comes HXA v Surrey County Council [2022] EWCA Civ 1196. HXA comprised two separate claims by children against local authorities that had failed to take the claimants into protective care when they were being abused by members of their families. The case therefore broadly resembles the leading decision in GN v Poole B.C. [2019] UKSC 25, [2020] A.C. 720. In the High Court, Stacey J. struck out the claims in HXA: [2021] EWHC 2974 (Q.B.). She reminded herself at [64] of the emphasis on precedent and coherence in Robinson v Chief Constable [2018] UKSC 4, [2018] A.C. 736. In this spirit, she held the pleaded claims in HXA to be indistinguishable from GN v Poole, where the Supreme Court clearly laid down that a local authority did not assume responsibility by investigating and monitoring a vulnerable child’s situation. The Court of Appeal, however, thought that as allegations of assumption of responsibility “always depend on the specific facts of the case” it would be “plainly wrong” to strike the case out, when the law remained at a “relatively early stage [of] development” since the Poole case: [2022] EWCA Civ 1196 (at [105]–[106]). What emerges? First, this was an omissions case. Before Stacey J., the claimants made “valiant efforts” to identify negligent acts by the defendant authorities; Cambridge Law Journal, 81(3), November 2022, pp. 449–494 © The Authors, 2022. Published by Cambridge University Press on behalf of The Faculty of Law, University of Cambridge","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2022-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48358808","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}