The Architecture of Homicide

This review article examines Jeremy Horder’s proposals for reform of the law of homicide in his book Homicide and the Politics of Law Reform. It focuses on Horder’s defence of the Law Commission’s proposals for a three-tier structure of homicide offences, and the ‘moderate constructivist’ theory that he relies upon in mounting this defence. Horder’s theory, it is argued, fails to provide sound normative foundations for his preferred structure. However, a qualified defence is offered of another of Horder’s proposals: to give public opinion research a role in homicide reform. This would help to give substance to the principle of fair labelling in an area of the law where this principle is frequently invoked, but is also uncertain in its implications and force.

The Uses and Abuses of Legitimacy in International Law

In recent decades, the term ‘legitimacy’ has featured heavily in debates about international law and international institutions. Yet the concept of legitimacy, mercurial as it is, has remained under-scrutinized, leading to confusion and misuse. Rather than advancing a particular conception of what may make international law legitimate, this article seeks to clarify and complicate how international lawyers understand and use legitimacy as a concept. To begin, the article distinguishes between legal, moral and social legitimacy. It highlights the different ways in which these three approaches to legitimacy have been used in international law scholarship, while drawing attention to some of their more problematic tendencies. From there, it breaks the concept of legitimacy down into three major elements: its object, subject and basis. It argues that the tendency to blur these elements has led to much of the uncertainty and obfuscation in legitimacy debates. Finally, the article stresses the importance of distinguishing legitimacy from other grounds for compliance, including coercion, self-interest and habit. Ultimately, it argues that if treated with sufficient rigour, legitimacy provides a useful analytical concept for international lawyers. In doing so, it aims to encourage and facilitate the participation of international lawyers in broader inter-disciplinary debates about legitimacy.

Environmental Law-Making Public Opinion in Victorian Britain: The Cross-Currents of Bentham’s and Coleridge’s Ideas

It is increasingly clear that law and its enforcement in Victorian Britain were quite effective in tackling formative industrial problems concerning pollution and broader threats to nature. What is unclear is the political philosophy, if any, underlying this historic achievement. A prevalent view is that early ‘environmental’ law lacked any philosophical underpinning (being instead a piecemeal reaction to the various problems of industrialization as and when these presented themselves). The article revisits this issue with reference to Dicey’s analysis of 19th century ‘law-making public opinion’. Dicey identified three broad streams of seminal opinion that, he argued, shaped laws as the century unfolded. The early part of the century was dominated by ‘Old Toryism’, including the romantic conservatism associated with Samuel Taylor Coleridge. This then gave ground to ‘Benthamism’ (or ‘individualism’) which in turn ceded dominance to ‘collectivism’ (also influenced by Bentham’s ideas). Whilst Dicey ignored laws relating to the environment, I argue that this is not because these presented a particular difficulty for his thesis. Indeed, all three seams of ‘law-making opinion’ converged around the legal protection of nature to offer a rich and diverse philosophical foundation for environmental law.

Private Ordering and Public Policy: The Paradoxical Foundations of Corporate Contractarianism

This article critically examines the dominant contractarian theory of the firm, and the extent to which its main descriptive propositions are actually manifested within the UK’s legal framework of corporate governance today. The article’s doctrinal analysis is focussed on those principles and rules that together determine the division of decision-making power at the heart of the corporate structure, especially the longstanding contractual principle that underpins both the practical enforceability and normative character of the corporate constitution. The article highlights how the widespread existence of mandatory rules within the UK corporate governance system represents a major empirical aberration to contractarianism’s flexible, private-ordering paradigm of law. It furthermore demonstrates that, while contractarianism attempts to rationalize mandatory rules as being ultimately consistent with a quasi-contractual theory of rule selection, those explanations are either inappropriate to the UK’s law-making environment or else plagued by inherent and self-defeating contradiction. On this basis, the article concludes that contractarian logic is on its own incapable of legitimizing the core legal features of UK corporate governance, and in particular the controversial normative principle of shareholder exclusivity. It accordingly identifies the need to develop a defensible public policy justification for shareholder exclusivity based on public-democratic, as opposed to private-contractual, rationality.

The Law of the Dead: A Critical Review of Burial Law, with a View to its Development

This article critically reviews the present condition of burial law. Situating burial within the wider context of the ‘law of the dead’, it is observed that contemporary changes to the law have served to clarify and reinforce the individual’s power to determine what will happen to his or her organs and tissues upon death. An equivalent right to posthumous bodily self-determination has not been extended to the neglected area of burial, and it is recommended that burial law therefore needs to be updated. A series of solutions is elaborated in order to illustrate how these developments could be realized effectively in practice.

A Critique of Chester v Afshar

Our aim in this article is to provide a counterbalance to the substantial body of academic opinion supportive of the decision in the medical non-disclosure case of Chester v Afshar [2004] UKHL 41, [2005] 1 AC 134, while at the same time identifying some misconceptions that have arisen about the case. Our critique is consistent with the reasoning of the High Court of Australia in its recent decision in Wallace v Kam [2013] HCA 19, (2013) 87 ALJR 648. The article is divided into three sections. In the first section, we argue that the decision in Chester was a departure from orthodox negligence principles. In the second section, we critically examine the autonomy-based justification the majority in Chester gave for departing from those principles. And in the third section we consider a number of alternative ways in which protection could be given to the autonomy interests at stake in medical non-disclosure cases. Several more general points relating to the autonomy concept and the scope of liability doctrine in negligence law emerge from our critique. Our analysis also suggests that negligence law is ill-suited to the task of providing an appropriate legal solution to the problem of medical non-disclosure.

‘Damages Without Loss’: Can Hohfeld Help?

This article addresses a still unsolved puzzle in private law regarding the proper explanation of cases in which courts make substantial awards of damages to claimants whose rights have been infringed, but who appear to have suffered no factual loss in consequence of the infringement. The paradigm examples tend to involve awards of ‘user’, license fee or ‘hypothetical bargain’ damages in cases involving interference with property rights. It suggests that existing explanations of such cases are all unsatisfactory in one or another respect and posits a new and potentially more powerful explanatory thesis, drawing on Hohfeld. Such awards, it argues, compensate right-holders for the loss of legal powers associated with their primary claim-rights—in particular, the loss of powers they are accorded by the law to ‘prevent’ the infringement of certain types of primary claim right ex ante. Legal powers are thus to be regarded as assets or amenities, the loss of which is amenable to monetary compensation.

Mexico: New Antitrust Authorities and a New Federal Economic Competition Law

An amendment to the Mexican Constitution modified the telecommunications and antitrust legal frameworks in Mexico, aiming to encourage competition in the markets and, specifically, in the telecommunications and broadcasting sectors.

Two new antitrust authorities were created as autonomous constitutional entities, one with exclusive jurisdiction over the telecommunications and broadcasting sectors and a second one with jurisdiction in all other sectors.

A new Competition Law has been enacted, modifying proceedings followed by the antitrust authorities and granting them new powers.

The figure of ‘preponderant economic agents’ in the telecommunications and broadcasting sectors is introduced.

Payment Cards and Permitted Multilateral Interchange Fees (MIFs): Will the European Commission Harm Consumers and the European Payment Industry?

Since 1992, the European Commission has checked the legality with the competition rules of the multilateral interchange fees (MIFs) that are set by payment card schemes.

The latest judgment issued by the Court of Justice has brought no light to the fundamental issue of what levels of MIFs would be permissible.

The European Commission is now addressing the matter with a regulation which, if approved in its current form, would allegedly harm consumer welfare and the European payment industry.

Can Suppliers Fix Final Prices? The Contribution of China to the Debate on Resale Price Maintenance

The legality of resale price agreements has been heavily discussed in the EU and the USA.

It is now time to examine the position adopted by courts and authorities in other jurisdictions.

In China, courts are progressively developing their approach and authorities are doing the same—not necessarily in the same direction.