The Modern Law Review
- Publication date:
- Jonathan Sumption, Trials of the State: Law and the Decline of Politics, London: Profile Books, 2019, 112 pp, hb £9.99.
- Private Law and Housing Justice in Europe
This article explores the different meanings of the right to housing in Europe in public and private relations with housing providers. In light of the fundamental right to housing's meaning in the case law of the European Court of Human Rights and the Court of Justice of the European Union, we offer a new reading of the CJEU judgments that have hitherto been heralded as extending the social dimension of EU (private) law. We submit that the emphasis on economic and procedural rights risks further ‘economisation’ of housing relations in Europe. While the possibilities to grant direct horizontal effect to the right to housing in EU law currently offer limited potential to counter this trend, private law provides part of the framework for a further balancing of social and economic elements in housing cases. Accordingly, we call for a debate on the specific aspects of horizontal relationships in the complex system of housing justice.
- Re‐Evaluating ‘Best Interests’ in the Wake of Raqeeb v Barts NHS Foundation Trust & Anors
In Raqeeb v Barts NHS Foundation Trust, the latest of a number of cases concerning whether a child can travel abroad for treatment that doctors in the UK do not consider to be in their best interests, the High Court held that the hospital had acted unlawfully by failing to consider the child's rights under EU law when refusing to allow her to travel. Although this derogation could be justified on public policy grounds, as such treatment was, on the facts, in her best interests, no further interference with her rights was justified. In making this finding, the court recognised the ‘stress’ that such a case placed on the best interests test, lending weight to the argument for moving instead to a risk of significant harm threshold for judicial intervention in parental decisions, which better accounts for legitimate differences of value and strikes a better balance under Article 8 ECHR.
- Stephen Waddams, Sanctity of Contracts in a Secular Age: Equity, Fairness and Enrichment, Cambridge: Cambridge University Press, 2019, 235 pp, hb £85.00.
- Fingerprint Comparison and Adversarialism: The Scientific and Historical Evidence
This article suggests that lawyers and courts are largely oblivious to scientific insights regarding the value and limitations of latent fingerprint evidence. It proceeds through a detailed historical analysis of the way fingerprint evidence has been reported and challenged. It compares legal responses with mainstream scientific research. Our analysis shows that fingerprint evidence is routinely equated with categorical proof of identity notwithstanding scientific warnings that such an approach is ‘indefensible’. We find that legal challenges to latent fingerprint evidence have been uniformly focused on adjectival issues (e.g. compliance with enabling legislation), leaving the validity and accuracy of this subjective comparison technique virtually unexamined since its first reception at the very beginning of the twentieth century. Lack of legal engagement with validity, error and scientific research suggest that adversarial procedures have not worked effectively to secure scientifically reliable expert evidence and that legal personnel struggle with elementary scientific reasoning.
- John Frow, On Interpretive Conflict, Chicago: University of Chicago Press, 2019, 223 pp, pb £19.50.
- THE MODERN LAW REVIEW VOLUME 83 INDEX
- A Case Against Crippling Compensation in International Law of State Responsibility
The obligation of States to provide full reparation for internationally wrongful acts, including by full compensation, is one of the bedrock principles of international law. The article challenges this principle for cases where compensation is crippling for the responsible State or its peoples, which can occur when State responsibility is implemented before international courts and tribunals. The International Law Commission's decision not to qualify full reparation for instances of crippling compensation in its influential Articles on State responsibility was an unpersuasive legal position to adopt in 2001, and its rationale has aged badly. However, the failure by States and other actors to challenge it in the following two decades signified its endorsement by the international legal process. Nevertheless, the case against the permissibility of crippling compensation in modern international law can still be made, both on a case‐by‐case basis and at the level of customary secondary rules of State responsibility.
- Christophe Geiger, Craig Allen Nard and Xavier Seuba (eds), Intellectual Property and the Judiciary, Cheltenham, Edward Elgar, 2018, 560 pp, hb £135.00.
- Mavis Maclean and Bregie Dijksterhuis (eds), Digital Family Justice: From Alternative Dispute Resolution to Online Dispute Resolution? Oxford: Hart, 2019, 244 pp, hb £55.00.
- (A) Just Rhetoric?
- A Benefactor's Right Of Action Against A Tortfeasor: A New Approach In Israel
- A Brief Rejoinder to Michael Zander
- A Case of Czech Beer: Competition and Competitiveness in the Transitional Economies
- A Comment on Professor Schick's Article, ‘International Criminal Law—Facts and Illusions’
- A CONFUSION OF POWERS: POLITICS AND THE RULE OF LAW*
- A Critique of Criminal Causation
- A Director's Duty of Loyalty and the Relevance of the Company's Scope of Business: Cheng Wai Tao v Poon Ka Man Jason
The Hong Kong Court of Final Appeal has utilised a ‘scope of business’ inquiry to delineate the boundaries of the no‐conflict rule for the company director. Such an inquiry is directed at discerning the realistic ability of the company to exploit any particular business opportunity and a strict...
- A FRENCH LAWYER LOOKS AT BRITISH COMPANY LAW*
- A Homestead Act For England?*