Current Legal Problems 2023

This paper challenges the conventional understanding among many legal ethicists that environmental harm can be a necessary, if regrettable, collateral effect of lawyerly work. It argues that lawyers sometimes do things that cost society too much and that legal ethics (being the rules of ethical conduct set out by regulators of lawyers and broader theories of ‘good’ lawyering) has the potential to act as a mediator on lawyers’ environmental harm-causing action. The paper begins by examining lawyers’ formal rules of professional conduct in England & Wales, showing how those rules require lawyers to provide active counselling to clients but do not fully address clients’ legally permissible choices that may result in environmental harm. The paper then turns to theories of legal ethics that go...

This paper examines an idea which has made some headway into legal scholarship and case law, namely, that the violation of a right ought to sound in substantial (compensatory) damages in and by itself, independently of any factual loss caused to the claimant. This doctrine of ‘normative damages’ was rejected, rightly, by the High Court of Australia in the wrongful imprisonment case of Lewis v. ACT in 2020. However, although the rejection was unanimous, its clarity was undermined by the fact that the issue of normative damages was intertwined with considerations of causal counterfactuals and the definition of false imprisonment. This article considers the doctrine in a broader perspective, examining where it has come from and arguing that normative damages are wrong as a matter of...

Privatisation is much studied and debated as a general phenomenon, including in relation to its legal effects and the challenges it presents to the boundaries of public and private law. Outside the criminal context there has however been relatively limited focus on privatisation of the governmental functions which are perhaps of most interest to lawyers—law making, law enforcement and dispute resolution—or on the international legal implications of privatisation. This article argues that modern legal developments in the context of private law and cross-border private legal relations—generally known as party autonomy in private international law—can be usefully analysed as two distinct forms of privatisation. First, privatisation of certain allocative functions of public and private...

How do we talk about changing the law? This article considers the rhetoric of law reform and what it can tell us about the current relationships between key institutions involved in the relevant processes. A key claim is that the rhetoric deployed in formulating proposals can complicate the fate of law reform projects as they develop. Several examples from private and criminal law are used to support the argument, with assessment of the interaction of time and legal development. The language of ‘modernisation’—a noticeable theme in contemporary proposals from the Law Commission of England and Wales—is scrutinised. The Commission’s statutory functions expressly include ‘the repeal of obsolete and unnecessary enactments… and generally the simplification and modernisation of the law’, but...

Almost as soon as Briggs J opined in Calvert v William Hill Credit Ltd (2008) that ‘recognition of a common law duty to protect a problem gambler from self-inflicted gambling losses involves a journey to the outermost reaches of the tort of negligence, to the realm of the truly exceptional’, the legal and technological context of his dictum utterly transformed. The liberalising regime of the Gambling Act 2005 was not in force when the facts of Calvert occurred, and the legislation was itself out of date by the time it was implemented, with the arrival of highly addictive online gambling platforms, smartphones, sophisticated targeted marketing and ubiquitous advertising. Today, gambling disorder is a growing, devastating psychiatric disorder and a major public health problem, with far too...

Today’s consumers use a range of cues to identify product origin, including brand names, logos, colours and shapes. The range of registrable marks has therefore expanded, but this brings a risk that features which others have a legitimate competitive need to use will fall under the exclusive control of a single undertaking. Registration may also be used to extend the finite duration of other IP rights that the owner has already enjoyed. Consequently, trade mark law contains functionality limitations on registration designed to protect these competitive concerns. This piece considers how well those limitations are working. The CJEU has also seemed to apply stricter distinctiveness rules to shape marks based on the assumption that consumers are not used to seeing shapes as origin indicators...

Judicial diversity is a priority without priority. While few would argue, openly at least, against a more diverse judiciary in principle, there is still some way to go to make it a reality. And yet, despite the slow rate of progress, reigniting conversations about diversity may seem unwise in the current political moment, raising the question of whether those seeking to achieve a truly diverse judiciary have anywhere (new) to go. We seem to have reached an impasse. This article brings the insights of feminist legal history to bear on arguments for judicial diversity. Drawing on original archival research, it focuses on the establishment of the Industrial Court in 1919 and tells, for the first time, how there came to be statutory requirement for women’s presence on the court. It argues...

Data protection law is often invoked as the first line of defence against data-related interferences with fundamental rights. As societal activity has increasingly taken on a digital component, the scope of application of the law has expanded. Data protection has been labelled ‘the law of everything’. While this expansion of material scope to absorb the impact of socio-technical changes on human rights appears justified, less critical attention has been paid to the questions of to whom the law should apply and in what circumstances. The Court of Justice has justified an expansive interpretation of the personal scope of the law in order to ensure ‘effective and complete’ data protection for individuals. This article argues that the attempt to make the protection offered by the law more...

This paper examines how the right to free expression and academic freedom interact under English and international law, discusses how those two rights have traditionally been thought to interact, and considers how they can be brought together with the concept of academic free expression. In doing so, the article examines the legal parameters and key characteristics of academic free expression, namely: what is the protection afforded to it; what are its ‘qualifying criteria’; what are its limits and how might the protection afforded to it be lost; and, where might such protection not be lost as compared to the general right to free expression. To end, the article discusses why this all matters with reference to recent high-profile disputes over academic freedom, and examines how these...

Countries in the Global South have adopted competition laws and pursued competition policies very similar to countries in the North. This arrangement can be traced to various coercive powers at play—from trading partners in the North, international organizations to development banks, among others. As a result, the adopted laws are often unsuitable to the local needs of the countries in the South and their enforcement policies are often shaped by global pressure. This has alienated countries in the Global South from pursuing competition enforcement policies that could be empowering to their firms, consumers and communities at large. One way to resist and challenge these coercive powers is to pursue alternative competition policies, not alien to the Western nations themselves. In these...