Section 994 of the Companies Act 2006 and the Primacy of Contract

The Court of Appeal's decision in Fulham Football Club (1987) Ltd v Richards & Anor is both of interest and significance. By embracing the idea of the parties’ ability to ‘contract out’ of their statutory right to petition the court for relief under section 994 of the Companies Act 2006 (the so‐called ‘unfair prejudice’ remedy), their Lordships have not only contrived to stunt the future development of unfair prejudice as a minority shareholder remedy but, and more importantly for the purposes of this case note, their decision has reasserted and extended the contractual analogy in modern UK company law.     

The Effects of Mental Health and Substance Abuse Disorders on Institutional Misconduct Among Female Inmates

The US Sentencing Guidelines are among the most ambitious attempts in history to control sentencing discretion. However, a major sea change occurred in January of 2005, when the US Supreme Court ruled in United States v. Booker and Fanfan, that in order to be constitutional, the federal guidelines must be advisory rather than presumptive. The impact of the Booker/Fanfan decisions on interjurisdictional variation and sentencing disparity is an opportunity to examine the issue of whether the increased opportunity to sentence according to substantively rational criteria entails increased extralegal disparity. We draw on a conceptualization of courts as communities and a focal concerns model of sentencing decisions to frame expectations about federal sentencing in the wake of Booker/Fanfan. We test these expectations using USSC data on federal sentencing outcomes from four time periods: prior to the 2003 PROTECT Act, the period governed by the PROTECT Act, post-Booker/Fanfan, and post-Gall v US. In general, we find that extralegal disparity and between-district variation in the effects of extralegal factors on sentencing have not increased post-Booker and Gall. We conclude that allowing judges greater freedom to exercise substantive rationality does not necessarily result in increased extralegal disparity.     

Rebuttal versus Unmasking: Legal Strategy in R. v. Zundel

Conventional scholarly wisdom has it that most Italian Americans in the United States were loyal supporters of the policies of Fascism in the inter-war years but eventually rejected the antisemitic measures that Benito Mussolini's regime adopted in their ancestral country in 1938. Contrary to such an interpretation, Luconi argues that many Italian Americans themselves held antisemitic attitudes and, therefore, did not distance themselves from Fascism after Mussolini launched his campaign against Italian Jews. He also contends that these attitudes resulted less from an ideological commitment to Fascism than from both the strained relations between Italian Americans and Jewish Americans, and the antisemitic climate of opinion that characterized American society in the 1930s. Italian Americans and Jews were partners in the labour movement and the Democratic Party. Yet the former resented the latter's distrust in Italian Americans' labour militancy, as well as the earlier rise of Jews in the hierarchies of the unions and the Democratic Party. Furthermore, Italian Americans and Jews competed for jobs, political patronage, cheap housing and relief benefits, especially during the Depression years. Such ethnic rivalries and the appeal of right-wing organizations to Italian Americans contributed to make the latter prone to antisemitism. As a result, few Americans of Italian descent came out against the racial policy of the Fascist regime.     

The brown decades

Current positive attitudes towards the historic Brown v. Board of Education of Topeka, Kansas decision are likely to mislead us into thinking that it was welcomed when announced in 1954. Beyond that, Chief Justice Warren's opinion seemed to announce two separate justifications for ruling school segregation unconstitutional: the Fourteenth Amendment principle of ‘equal protection of the laws’ and the negative effects of segregation on the self-image and self-respect of black schoolchildren. These two lines of reasoning were both important in the context of the emergence of a new ‘universalist’ way of thinking about race after the Second World War. By the late 1960s, however, this colour-blind universalism had given way to a race-conscious particularism. By that same period, the federal court system was moving to embrace race-conscious measures to insure school integration and not just desegregation, and then to allow affirmative action rather than merely requiring the abolition of racial discrimination. Thus the conflicting logics of Brown were present in the racial jurisprudence and politics of the last fifty years. Another question raised by Brown is also important: how did it comport with the progressive tradition of jurisprudence called ‘legal realism’ that was dominant up to the end of the Second World War? Surprisingly little attention has been devoted to this problem in the intellectual history of constitutional thought. One thing is clear, however: legal realism has a different origin and orientation than the ‘race and rights’ tradition that the Warren Court initiated with the Brown decision. Again, the conflicting logics of Brown reflect the two traditions of legal reasoning: one based on an appeal to rights and principles and one grounded in experience. Finally, reflection upon the half-century history of Brown reveals considerable progress in abolishing legal and political racial discrimination, although ironically more progress in integrating schools has been made in the South than the North. Moreover, such progress has come at a certain cost to black institutions in both regions of the United States. That said, there is still much to be done to overcome the effects of over a century of racial segregation.     

The Rule in Wilkinson v Downton: Conduct,Intention, and Justifiability

The decision in OPO v MLA [2014] EWCA Civ 1277 causes confusion to the rule in Wilkinson v Downton. A strong line of authorities indicates that the defendant must either have an actual intention to cause physical injury or be reckless as to the causing of such harm, the latter being determined by the likelihood of harm being caused by the defendant's act. ‘Imputed intention’ does not form a separate category of mental state. There was also a missed opportunity to develop a ‘justifiability’ criterion, by which policy considerations can be taken into account to preclude an application of the tort. This criterion ought to be developed in a principled manner, in line with the existing jurisprudence concerning human rights and with the policy limitations as developed in the context of other torts.     

PROTECTING CHILDREN WHO WITNESS DOMESTIC VIOLENCE

This article argues that the Nicholson v. Williams case was decided wrongly because it does not adequately protect the interests and welfare of children who witness domestic violence. It contends that the legal system must do more to ensure the well-being of children who witness domestic violence before permitting them to remain in the custody of their mothers who were living in violent relationships. The article does not support the notion that victims of domestic violence should be prosecuted for failure to protect or child abuse but argues that evidence reveals how detrimental witnessing domestic violence is on a child and that this necessitates the need for stricter measures to be taken to protect children from this danger.     

The Strange Death of Blasphemy

Recent years have witnessed a considerable growth in legislation and litigation concerning religion. This article examines the implications of the latest change, namely the abolition of the offences of blasphemy and blasphemous libel by section 79 of the Criminal Justice and Immigration Act 2008. First, the article provides the context by examining what has been lost, analysing the ambit of the offence, focussing on litigation in the twentieth century both in domestic courts and at the European Court of Human Rights. Second, the article seeks to explore why blasphemy has been abolished now, scrutinizing five developments that led to the abolition. The article concludes by examining the extent to which the criminal law continues to protect religious beliefs and believers, contending that while the body of the blasphemy laws is dead, its soul lives on in a plethora of other criminal laws and, more problematically, in non‐legal means of control.     

传统与当代:法治社会法律强制力走向论析

区别于传统社会法律强制力,当代法治社会法律强制力的"当代"之含义,从其走向看,已从传统"压制或强迫的力量"发展到"内在或自制的力量"。究其缘由,主要是法治社会下"‘内在观点’的提出、‘社会合意’的发展、对社会功利主义的批判、‘权威’理论的阐扬"使得法律强制力呈现"被弱化"之趋势。具体表征上,法律强制力已由传统的法律"硬性"发展至当代的法律"柔性。     

英国法院在承认和执行外国仲裁裁决时的自由裁量权——“Dallah Real Estate and Tourism Holding Company v.The Ministry of Religious Affairs,Government of Pakistan”案评述

通过评述英国上诉法院作出的＂Dallah Real Estate and Tourism Holding Company v.The Ministry of Religious Affairs,Government of Pakistan＂判例,分析英国法院在承认与执行外国仲裁裁决时的自由裁量权行使之条件,并提出该判例可为《承认及执行外国仲裁裁决公约》缔约国提供参考。