Golden Accumulator Limited and Coral House Limited v Cayman Islands Monetary Authority

This article undertakes a comparative analysis of the approach in the UK with the Commonwealth Caribbean jurisprudence concerning the doctrine of legitimate expectation. It argues that there is an ad hoc approach of the courts the Commonwealth Caribbean towards their application of the doctrine of legitimate expectation and highlights the need to clearly define the reach of this doctrine.     

The Law of Police Entrapment: Critical Evaluation and Policy Analysis

This article provides a critical analysis of the law of police entrapment and proposes a new foundation for this law. The article shows that the ‘shift of scene’ assumption underlies existing and proposed legal tests for the legitimacy of entrapment. According to this assumption, in some identifiable cases the defendant would have committed a similar offence at a different time and location absent police entrapment. In these cases, entrapment is morally and economically insignificant and hence legitimate. Using probabilistic analysis, the article advances the argument that the ‘shift of scene’ assumption is misguided. Entrapment actually changes (usually raises) the probability of commission, and hence also the defendant’s punishment expectancy, in almost all cases. This increase is hard to justify on grounds of justice or on economic grounds. The article then proposes a different basis for the analysis of entrapment, building on the idea of reallocation of burdens: where the defendant creates particularly heavy burdens that go beyond the offence’s harm expectancy, it is justified to increase his punishment expectancy through entrapment. Furthermore, entrapment should be conceptualized as a mitigating factor, thus allowing the courts to ‘correct’ exaggerated or undue increases in the defendant’s punishment expectancy.     

The White & Carter Principle: A Restatement

This article reviews the English courts' approach to the controversial decision in White & Carter (Councils) Ltd v McGregor and suggests a systematic reformulation of the principle to be derived from that case. It argues that the notion of ‘legitimate interest’, at the core of that principle, suffers from severe obscurity as it stands. The critical issue in White & Carter is whether the wastefulness of a party's continuing performance outweighs its performance interest in earning the contract price. Three tests currently employed to determine the existence of a ‘legitimate interest’, namely, the adequacy of damages, the duty to mitigate and the concept of wholly unreasonable, are assessed and dismissed as either misdirecting or unsatisfactory in other ways. Finally, it articulates a new test based on a reappraisal of existing case law and summarises the key reasons for the courts to exercise their equitable jurisdiction against wasteful performance.     

Falling into Line? The Hostile Environment and the Legend of the ‘Judges’ Revolt’

In 2012 the Government made a number of controversial changes to the Immigration Rules, which it claimed would ‘comprehensively reform the approach taken towards ECHR Article 8 in immigration cases’. This paper examines the judicial response, arguing that the courts ‘fell into line’, adapting human rights law to the government's aims through unprincipled and opportunistic techniques, whilst inflicting hardship and injustice on working-class British citizens in particular. Four key moves are identified. First, the courts created an ‘incapable’ test which immunised the rules from in principle challenges. Second, Lord Bingham's Article 8 test, in which the reasonableness of any family member relocation was a central consideration, was replaced with a far less family-friendly test. Third, the courts adopted an ultra-lax rationality test at common law, even when the ‘fundamental rights’ of British citizens were engaged. Finally, the courts identified immigration policy as the ‘constitutional responsibility’ of the executive.     

From Brand Performance to Consumer Performativity: Assessing European Trade Mark Law after the Rise of Anthropological Marketing

Since the 2009 CJEU decision in L'Oréal v. Bellure, the idea that a brand's image is the property of the trade mark owner has become increasingly entrenched within European trade mark law. Brand image is now protected even where there is no harm to the underlying mark. However, the courts have largely failed to acknowledge the radical ways in which the marketplace for goods bearing trade marks has changed in the past three decades. One key shift is that businesses and marketers no longer view the brand creation process from a top‐down ‘brand performance’ perspective, but, rather, through the prisms of ‘anthropological marketing’ and ‘consumer performativity'. Through an interdisciplinary approach, this article dissects the process of brand creation in the context of European trade mark law, and argues that the law must take account of consumer agency when the question of who should own brand image arises.     

Two Meanings of ‘Reasonableness’: Dispelling the ‘Floating’ Reasonable Doubt

The ‘reasonable doubt standard’ is the controlling standard of proof for criminal fact finding in several jurisdictions. Drawing on decision theory, some scholars have argued that the stringency of this standard varies according to the circumstances of the case. This article contends that the standard does not lend itself to the ‘sliding‐scale’ approach mandated by decision theory. This is supported through investigation of the concept of ‘reasonableness’. While this concept has mostly been studied as it operates with reference to practical reasoning, scant attention has been given to the meaning that it acquires when referred to theoretical reasoning. Unlike in the former case, reasonableness does not in the latter depend on the reasoner's attitudes in favour of the outcomes of a decisional process. Therefore, since criminal fact finding is an instance of theoretical reasoning, the question whether in this enterprise a doubt is reasonable is not susceptible to a decision‐theoretic approach.     

Report of the Law Reform Commission of Tanzania on Congestion in Prisons

Since its formal inauguration in the year 2006, the Caribbean Court of Justice (CCJ) has arguably shown itself to be quite capable of effectively dispensing with its overarching aims of consistency, coherence and legal certainty in the process of adjudication. Indeed, through the adoption of a teleological approach to the construction of the Revised Treaty of Chaguramas, the CCJ has positioned itself as a major operational component in the new Caribbean legal order, serving, as the European Court of Justice as well as several domestic courts have done, to ensure transparency and accountability. The court’s relatively nuanced purpose-driven approach has arguably been the single biggest contributing factor to the region’s quickly evolving ‘indigenous jurisprudence’. Nevertheless, some of the court’s most recent original jurisdiction decisions reveal a growing trend towards judicial restraint. The varying degrees to which the CCJ has adopted a teleological approach to the interpretation of the Revised Treaty of Chaguramas, the concomitant effects of this important development as well as the challenges which invariably arise in this connection are the subject of this article.     

Countering Hybrid Eco-threats to Global Security Under International Law: The Need for an Comprehensive Legal Approach

Threats to environmental security (‘eco-threats’) face not only shortcomings of environmental protection during hostilities under the Law of Armed Conflict. Considering the new ‘Hybrid Threat’ concept, which had recently been discussed by NATO, the authors recognise from the perspective of International Law the need for adopting a comprehensive legal approach towards such threats. The International Environmental Law, the International Humanitarian Law and the Customary International Law show some shortcomings to tackle the new challenge. In the focus is the rule of law, in particular the principle of proportionality, which can play a role when countering such threats and legal rules can have a positive effect on the international community’s ability to act.     

Between Immigration and Policing: Cross Recognition

Abstract: This article looks at the development of the UK's policies towards asylum‐seekers who are to be returned to some country other than the one where they fear persecution (its ‘safe third country’ policy). The Dublin Convention of 1990 addressed some of the problems which this policy created, but left others unresolved. Domestic legislation has progressively reduced the opportunities for challenging safe third‐country removals, especially to an EU state. The incorporation of the European Convention on Human Rights into UK law has generated new possibilities for challenging safe third‐country decisions where removal might damage physical or mental health. Articles 3 and 8 have been invoked in particular. The Dublin machinery established ‘rules’ to decide which member state was responsible for considering the asylum claim and the procedure to be followed. The article examines why the UK courts have said that these provisions are not justiciable in the English courts. Finally the article considers whether the experience with Dublin provides any useful guidance as to the approach that will be taken to European arrest warrants and extradition requests.     

Caution in the Classroom: K-12 Teacher In-Class Speech,The Federal Courts and Garcetti

The federal courts’ approach to regulating K-12 public school teacher speech in the classroom has been split during the past twenty years. Some circuit courts use Pickering v. Board of Education, in which speech is examined to see if it touches on a matter of public concern. Others prefer Hazelwood v. Kuhlmeier, which focuses on whether speech is school-sponsored and whether the school had a legitimate reason for restricting it. In 2007, Garcetti v. Ceballos offered a new perspective on public employee speech. In that case, speech was examined to determine whether it was related to an employee's professional duties. An examination of federal court treatment of in-class teacher speech before and after Garcetti shows the case has further complicated the issue because it is being embraced by some federal courts as an appropriate precedent when dealing with classroom speech.     

Privative clauses in special education legislative schemes: are they constitutional under the Canadian Charter?

This paper suggests that privative clauses in the enabling statutes (Education Acts) governing provincially appointed special education appeal tribunals (SET) are unconstitutional under the Canadian Charter of Rights and Freedoms. It is suggested that ‘final and binding’ SET decisions about children's designation as special needs and their educational placement infringe upon the Charter rights of both parent and exceptional child. The standard for judicial review of SET decisions, given a privative clause, is whether the decision is ‘patently unreasonable’ while ‘correctness’, according to case law, is the appropriate standard when finally determining fundamental rights. Parents of exceptional children in practice have recourse to the courts regarding only procedural rather than substantive issues regarding SET decisions due to the high deference the courts afford any administrat ive tribunal protected by a privative clause. The very high judicial review standard of ‘patently unreasonable’ rather than ‘correctness’ is not consistent, furthermore, with the child's ‘best interests’ or in meeting international obligations to disabled children under the Convention on the Rights of the Child.     

The value of a promise

The question “What makes a promise binding?” has received much attention both from philosophers and lawyers. One argument is that promises are binding because the act of making a promise creates expectations in the promisee, which expectations it would be morally wrong to disappoint. Another argument is grounded in the effects engendered by the making of a promise, specifically actions taken in reliance upon the promise. These two positions, the so-called expectation and reliance theories, have traditionally been thought to be incommensurable. In a recent article, ‘Promises and Practices’, Thomas Scanlon advances a theory of promising developed out of both of these positions. This article argues that Scanlon's argument fails because it cannot avoid the incommensurability of the expectation and reliance principles.     

'Solange, chapter 3': Constitutional Courts in Central Europe—Democracy—European Union

Abstract: Soon after the accession of eight post‐communist states from Central and Eastern Europe to the EU, the constitutional courts of some of these countries questioned the principle of supremacy of EU law over national constitutional systems, on the basis of their being the guardians of national standards of protection of human rights and of democratic principles. In doing so, they entered into the well‐known pattern of behaviour favoured by a number of constitutional courts of the ‘older Europe’, which is called a ‘Solange story’ for the purposes of this article. But this resistance is ridden with paradoxes, the most important of which is a democracy paradox: while accession to the EU was supposed to be the most stable guarantee for human rights and democracy in post‐communist states, how can the supremacy of EU law be now resisted on these very grounds? It is argued that the sources of these constitutional courts’ adherence to the ‘Solange’ pattern are primarily domestic, and that it is a way of strengthening their position vis‐à‐vis other national political actors, especially at a time when the role and independence of those courts face serious domestic challenges.     

Delineating and derogating constitutional rights in Trinidad and Tobago

This article examines the approach taken by courts in Trinidad and Tobago when analysing the Parliament’s power under section 13 of the Constitution to derogate from constitutionally guaranteed rights protected under section 4. The author analyses inconsistencies in the tests applied by the courts over the years in various cases and considers a different approach that could be adopted in order to protect citizens’ rights while having due deference to the Parliament’s power to legislate.     

Applying Precaution in EU Authorisation of Genetically Modified Products—Challenges and Suggestions for Reform

In this article, I endeavour to examine concrete challenges that arise with regard to implementation of the precautionary principle in the field of European Union regulation of genetically modified organisms (GMOs). Developed by the European courts into a general legal principle, precaution requires EU regulators to strike a balance between scientific and political legitimacy when taking decisions on risk‐entailing products. Following this understanding, the current GMO legislation creates precautionary governance structures that allow for a broad input into the authorisation process, not only of scientific, but also of ‘other legitimate factors’. At the same time, it can be criticised for narrowly defining precaution as a decision rule, which, if applied correctly, will lead the decision maker to the ‘right’ decision. I argue that this misconception is one of the reasons why, in the current authorisation practice, the EU institutions fail to apply the principle in a balanced way, falling into the extremes of either purely science‐based decision making or a highly politicised precautionary rhetoric. I suggest that in order not to be paralysing, precaution should be understood as a procedural principle that provides for precautionary governance, thus enabling regulators to make appropriate risk choices.     

Law and Institutional Legitimacy in the Practice of Human Rights

The Heart of Human Rights develops an account of human rights as legal entities that serve important moral purposes in a legitimate international human rights practice. This paper examines Allen Buchanan’s general concept of institutional legitimacy and aims to expand that concept by emphasizing its connection with several ideas developed in the book about the nature and function of a system of international human rights. When it incorporates those ideas, Buchanan’s ‘Metacoordination View’ can be seen to set a standard of legitimacy not only for assessments of an international scheme of human rights institutions, but also for the basic institutional structures of domestic states. Furthermore, we can see how the nature and function of human rights in the international practice of human rights bears on legitimacy assessments of particular domestic institutions.     

Reason‐Giving in Administrative Law: Where are We and Why have the Courts not Embraced the ‘General Common Law Duty to Give Reasons’?

This article has two aims. Firstly, it explores a body of modern challenges to administrative reason‐giving, decided in the five‐year period 2014–2018. Three main themes are drawn out: outright failures to give reasons now seem to be a rare occurrence; a number of considerations help to ensure that at least an outline of reasons is usually offered by decision‐makers; common law fairness plays a limited role in testing the adequacy of reasons. Secondly, it addresses the question of why the courts have not embraced a ‘general common law duty to give reasons.’ Four factors are discussed: doubts that introducing a general duty would add something of substance to the law; difficulties inherent in developing a general formulation of the reasons required; weaknesses in the ‘hortatory’ case for a general duty and weaker commitment on the part of judges than academics to generality as a central feature of administrative law doctrine.     

The Consumer as the Empirical Measure of Trade Mark Law

Although consumer responses to signs and symbols lie at the heart of trade mark law, courts blow hot and cold on the relevance of empirical evidence – such as surveys and experiments – to establish how consumers respond to alleged infringing marks. This ambivalence is related to deeper rifts between trade mark doctrine and the science around consumer decision‐making. This article engages with an approach in ‘Law and Science’ literature: looking at how cognitive psychology and related disciplines conceptualise consumer decision‐making, and how counterintuitive lawyers’ approaches appear from this perspective. It demonstrates how, especially when proving confusion, decision‐makers in trade mark demand the impossible of empiricists and are simultaneously blind to the weaknesses of other sources of proof. A principled divergence, without seeking to collapse the gaps between legal and scientific approaches, but taking certain small steps, could reduce current problems of proof and contribute to better‐informed, more empirically grounded decisions.     

Of ‘Landmark’ or ‘Leading’ Cases: Salomon's Challenge

This article seeks to question the two dominant conceptions of ‘landmark’ or ‘leading’ cases in English legal scholarship, using the House of Lords decision in Salomon v. Salomon Co Ltd. – the most famous case in corporate law – as a case study. It argues that neither the first dominant conception of ‘leading’ or ‘landmark’ cases, characterized by the analysis of the intrinsic merits of a case, nor the second, which looks at the historical contexts in which cases were decided, appears sufficient by itself to determine whether a case is landmark or canonical. Rather, we have to look at how the canonicity of a case is constructed by subsequent courts. The article seeks to advance the debate concerning the formation of landmark cases and aims to challenge certain prevailing views on the canonicity of corporate law's arguably most significant case.     

Judicial Responses to Bright Line Rules in Social Security: In Search of Principle

This article considers judicial responses to the use of 'bright line' rules in social security law. It analyses, within the framework of judicial deference, the receptiveness of the judiciary to an argument by the executive that a rule is justified as being administratively convenient to operate. The article questions the proposition that the judiciary is at its most deferential when complex issues of socio-economic policy or resource allocation are raised in the context of social security law. A contrast is drawn between cases involving an issue of statutory interpretation and those applying a proportionality test. The article tests the presumption that a difference in approach should be discernable in these two situations. It concludes by criticising the courts for failing to articulate clearly the values at stake and by arguing for the need for greater transparency and a broader public debate concerning the use of bright line rules.