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PARENTAL DUTIES OF NON-DISCRIMINATION AND THE SCOPE OF ANTI-DISCRIMINATION LAW 父母的非歧视义务和反歧视法的范围
The Cambridge Law Journal Pub Date : 2024-09-16 DOI: 10.1017/s0008197324000242
Colin Campbell, Patrick Emerton
{"title":"PARENTAL DUTIES OF NON-DISCRIMINATION AND THE SCOPE OF ANTI-DISCRIMINATION LAW","authors":"Colin Campbell, Patrick Emerton","doi":"10.1017/s0008197324000242","DOIUrl":"https://doi.org/10.1017/s0008197324000242","url":null,"abstract":"<p>Parents’ discrimination against their children is lawful. But the family, as an institution in which social goods are allocated, is as significant as the sites in which anti-discrimination law operates. At least prima facie, therefore, parents should be governed by legal prohibitions on discrimination. While state incursion into family life poses a threat to children’s autonomy, so does parental discrimination against children. Anti-discrimination law therefore needs new institutions to promote the values of non-discrimination in a part of society that currently sits outside anti-discrimination law’s reach. We identify existing regimes that may provide a starting point for this work.</p>","PeriodicalId":501295,"journal":{"name":"The Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2024-09-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142256310","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
INTERPRETING MULTIPLE DISPUTE-RESOLUTION CLAUSES IN CROSS-BORDER CONTRACTS 跨境合同中多重争议解决条款的解释
The Cambridge Law Journal Pub Date : 2024-09-11 DOI: 10.1017/s0008197324000229
Ardavan Arzandeh
{"title":"INTERPRETING MULTIPLE DISPUTE-RESOLUTION CLAUSES IN CROSS-BORDER CONTRACTS","authors":"Ardavan Arzandeh","doi":"10.1017/s0008197324000229","DOIUrl":"https://doi.org/10.1017/s0008197324000229","url":null,"abstract":"Cross-border contracts often contain a clause which purports to reflect the parties’ intention regarding how disputes arising from their agreement should be resolved. Some such contracts might feature a “jurisdiction clause”, thus signifying the parties’ wish to subject their disputes to litigation before the courts in a specific state. Others may include an “arbitration clause”, meaning that claims arising from the contract should be subjected to an arbitral hearing. More unusual are cases in which the parties have included a jurisdiction <jats:italic>and</jats:italic> an arbitration clause in the same cross-border contract. This article seeks to assess English law’s approach to determining the parties’ preferred mode of dispute resolution in these more difficult cases. As it seeks to demonstrate, the current practice in this area is not always easy to defend. The article advances an alternative basis for determining which of the two competing clauses should prevail.","PeriodicalId":501295,"journal":{"name":"The Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2024-09-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142190622","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
THERE IS NO SUCH THING AS THE SEPARABILITY THESIS 不存在分离论
The Cambridge Law Journal Pub Date : 2024-09-09 DOI: 10.1017/s0008197324000254
Matthew H. Kramer
{"title":"THERE IS NO SUCH THING AS THE SEPARABILITY THESIS","authors":"Matthew H. Kramer","doi":"10.1017/s0008197324000254","DOIUrl":"https://doi.org/10.1017/s0008197324000254","url":null,"abstract":"One commendable aspect of the ruminations by H.L.A Hart on legal positivism, which quite a few contemporary philosophers of law have not fully absorbed, is that he recognised the diversity of the points of contention that have pitted the devotees of positivism against the devotees of natural-law theories. Whereas some present-day philosophers of law are inclined to refer to “the separability thesis” of legal positivism – with the definite article “the” as a signal that there is one defining point of dispute between legal positivists and their opponents – Hart knew that there is no single such thesis. Natural-law theorists have in fact postulated numerous connections between law and morality which putatively clinch the character of law as an inherently moral phenomenon, and legal positivists have posed challenges to each of those connections or to the claim that any unchallenged connection serves to establish the inherently moral character of law.","PeriodicalId":501295,"journal":{"name":"The Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2024-09-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142190624","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
THE ACTUAL LOSS ILLUSION 实际损失假象
The Cambridge Law Journal Pub Date : 2024-09-09 DOI: 10.1017/s0008197324000230
Andrew Fell, Iain Field
{"title":"THE ACTUAL LOSS ILLUSION","authors":"Andrew Fell, Iain Field","doi":"10.1017/s0008197324000230","DOIUrl":"https://doi.org/10.1017/s0008197324000230","url":null,"abstract":"On the orthodox account of the private law compensatory principle, the claimant is compensated for the loss that they actually suffered because of the defendant’s wrong. Although the principle has various exceptions, it is widely accepted in both case law and academic commentary. We argue that it is nevertheless flawed, both doctrinally and theoretically. Claimants are never really compensated for their actual loss, and, contrary to popular belief, leading theoretical accounts of private law compensation (corrective justice and the continuity thesis) suggest that a principle of compensation for actual loss is not desirable in any event.","PeriodicalId":501295,"journal":{"name":"The Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2024-09-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142190623","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
CRIMINAL INTENT IN NINETEENTH-CENTURY ENGLAND 十九世纪英国的犯罪意图
The Cambridge Law Journal Pub Date : 2024-05-13 DOI: 10.1017/s0008197324000217
Philip Handler
{"title":"CRIMINAL INTENT IN NINETEENTH-CENTURY ENGLAND","authors":"Philip Handler","doi":"10.1017/s0008197324000217","DOIUrl":"https://doi.org/10.1017/s0008197324000217","url":null,"abstract":"This article examines how intention became key to criminal responsibility in nineteenth-century England. It focuses on trials where judges wrested with defence counsel and juries for control over its determination. The most important rule that developed to support proof of intention was the presumption that a person intended the natural and probable consequences of their actions. The article charts the origins and functions of the presumption to offer a revised view of the nineteenth-century foundations of the modern law of criminal intention.","PeriodicalId":501295,"journal":{"name":"The Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2024-05-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140929018","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
CONSTITUTIONAL VALUES IN THE COMMON LAW OF OBLIGATIONS 普通义务法中的宪法价值
The Cambridge Law Journal Pub Date : 2024-04-03 DOI: 10.1017/s0008197324000011
Philip Sales
{"title":"CONSTITUTIONAL VALUES IN THE COMMON LAW OF OBLIGATIONS","authors":"Philip Sales","doi":"10.1017/s0008197324000011","DOIUrl":"https://doi.org/10.1017/s0008197324000011","url":null,"abstract":"<p>“Constitutional values” is a term which appears to relate to concepts of what is now called public law. By constitutional values, I mean the basic ideas and interests which structure relations between the individual and the state, and the obligations to which they give rise, which underlie the common law and to which it gives recognition in more or less articulated forms. These are ideas and interests such as liberty, private life, freedom of expression and access to justice. Constitutional values and human rights overlap, but they are not necessarily and always the same, either in content or in effect. In exploring this topic I hope to retrieve and bring to the surface an important aspect of the common law in terms of both private law and public law.</p>","PeriodicalId":501295,"journal":{"name":"The Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2024-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140578685","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
ON TRUSTS, HYPOCRISY AND CONSCIENCE 关于信任、虚伪和良知
The Cambridge Law Journal Pub Date : 2024-04-03 DOI: 10.1017/s0008197324000023
Irit Samet
{"title":"ON TRUSTS, HYPOCRISY AND CONSCIENCE","authors":"Irit Samet","doi":"10.1017/s0008197324000023","DOIUrl":"https://doi.org/10.1017/s0008197324000023","url":null,"abstract":"<p>In this paper, I suggest that taking seriously the way in which the trust is founded on a duty of conscience has far-reaching ramifications for the appropriate attitude towards new forms of trusts that are designed to allow people to enjoy the benefits of ownership without incurring the duties that come with it. The morally freighted concept of conscience that lies at the heart of trust law means that every claim against trustees invokes a demand that the trustee abide by the requirements of their conscience. The conditions on the right to blame others for a moral wrongdoing, and the relationship between blaming and suing in the context of trust law, lead to the conclusion that, in novel forms of trust that are geared towards the creation of a morally bankrupt “orphan property”, beneficiaries do not have moral standing to sue the trustee for a breach of trust.</p>","PeriodicalId":501295,"journal":{"name":"The Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2024-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140579102","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
UNPACKING PACCAR: STATUTORY INTERPRETATION AND LITIGATION FUNDING 解密 paccar:法律解释和诉讼资金
The Cambridge Law Journal Pub Date : 2024-03-20 DOI: 10.1017/s0008197324000187
Rachael Mulheron
{"title":"UNPACKING PACCAR: STATUTORY INTERPRETATION AND LITIGATION FUNDING","authors":"Rachael Mulheron","doi":"10.1017/s0008197324000187","DOIUrl":"https://doi.org/10.1017/s0008197324000187","url":null,"abstract":"<p>In the most important funding decision in 20 years, the UK Supreme Court has declared in R. (PACCAR Inc. and others) v Competition Appeal Tribunal and others [2023] UKSC 28, [2023] 1 W.L.R. 2594 that, as a matter of statutory interpretation, a third-party funder’s litigation funding agreement (LFA) is a damages-based agreement (DBA) because third-party funders are offering “claims management services”. This decision, which overturned both the earlier Divisional Court and the Competition Appeal Tribunal decisions, and long-held industry and judicial understanding, has had an immediate impact upon UK litigation. Many LFAs will require immediate re-negotiation, given their non-compliance with the DBA legislation; but for some, the ramifications are much more serious. This article traces the legislation, soft law and law reform activity which preceded this momentous event; it suggests that a key principle of statutory interpretation which governed the outcome might arguably be re-evaluated in future case law; it discusses the possibility of legislative reversal; and it predicts the ramifications of the PACCAR decision upon (especially consumer) litigation unless reversed.</p>","PeriodicalId":501295,"journal":{"name":"The Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2024-03-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140165251","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
ENSURING CONSUMERS “GET WHAT THEY WANT”: THE ROLE OF TRADEMARK LAW 确保消费者 "得偿所愿":商标法的作用
The Cambridge Law Journal Pub Date : 2024-02-06 DOI: 10.1017/s0008197323000636
Graeme B. Dinwoodie
{"title":"ENSURING CONSUMERS “GET WHAT THEY WANT”: THE ROLE OF TRADEMARK LAW","authors":"Graeme B. Dinwoodie","doi":"10.1017/s0008197323000636","DOIUrl":"https://doi.org/10.1017/s0008197323000636","url":null,"abstract":"This Article considers how trademark law should interpret the commitment in legislative history to the 1946 (US) Lanham Act that one of the principal purposes of trademark law is “to protect the public so that it may be confident that, in purchasing a product bearing a particular trademark which it favorably knows, it will get the product which it asks for and which it wants to get”. It looks back to highlight the often under-appreciated role of the consumer protection rationale in recent expansions in trademark protection, and then considers the different ways by which that basic objective might now be pursued by trademark law. It concludes that, without disregarding the core consumer protection purpose of trademark law, we need to start viewing the question of ensuring consumers get what they want both with a broader view of consumer interests and more explicit attention to a wider array of values.","PeriodicalId":501295,"journal":{"name":"The Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2024-02-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139903304","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
REGULATING USE BY LAW ENFORCEMENT AUTHORITIES OF LIVE FACIAL RECOGNITION TECHNOLOGY IN PUBLIC SPACES: AN INCREMENTAL APPROACH 规范执法机关在公共场所使用实时面部识别技术:渐进方法
The Cambridge Law Journal Pub Date : 2023-12-11 DOI: 10.1017/s0008197323000454
Asress Adimi Gikay
{"title":"REGULATING USE BY LAW ENFORCEMENT AUTHORITIES OF LIVE FACIAL RECOGNITION TECHNOLOGY IN PUBLIC SPACES: AN INCREMENTAL APPROACH","authors":"Asress Adimi Gikay","doi":"10.1017/s0008197323000454","DOIUrl":"https://doi.org/10.1017/s0008197323000454","url":null,"abstract":"<p>Amid the growing calls for the complete prohibition of the use by law enforcement authorities of live facial recognition (LFR) technology in public spaces, this article advocates for an incremental approach to regulating the use of the technology. By analysing legislative instruments, judicial decisions, deployment practices of UK law enforcement authorities, various procedural and policy documents, as well as available safeguards, the article suggests incremental adjustments to the existing legal framework instead of sweeping regulatory change. The proposed approach calls for adopting national legal rules governing watch lists and introducing spatial, temporal and contextual limitations on the deployment of technology based on the assessment of proportionality and necessity. To enhance the effectiveness of overt surveillance using LFR, the article recommends adopting a transparency procedure that promotes accountability without undermining the objectives of law enforcement. Alternatively, the overt use of the technology should be limited to deterring the commission of crimes and safeguarding public safety, where transparency does not undermine its effectiveness. Limiting the scope of overt use of LFR technology entails that law enforcement agencies primarily utilise covert surveillance, with prior judicial approval, except in urgent cases, as this would improve effective criminal investigation and public safety. The legal adjustments proposed in this article can be implemented through flexible secondary legislation or local policies, rather than rigid statutory rules.</p>","PeriodicalId":501295,"journal":{"name":"The Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-12-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138565940","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
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