Abstract This article reappraises remoteness of damage in negligence. It argues that, for initial harm, the scope-of-risk (SOR) framework provides a superior analytical tool than the foreseeability test. By tying liability to the risks that make conduct negligent, SOR explains features that foreseeability cannot, including the type of harm, the manner of its infliction, and the irrelevance of foreseeability as to extent. The doctrine’s role also depends on the structure of breach: where breach is assessed against any risk of harm, SOR operates as a distinct inquiry; where breach is assessed against a specific risk, SOR collapses into the breach inquiry itself. The article also examines further harm: the eggshell skull rule avowedly lies beyond both SOR and foreseeability, resting instead on a directness test; as to consequential harm, while foreseeability is treated as the orthodox test, it does not provide a satisfactory framework, indicating the need for substantial doctrinal rethinking.
Abstract This article seeks to theorise and enhance the legitimacy of transnational rule makers which appeal to ‘science-based’ methods, focusing on the Science Based Targets initiative (SBTi). It asks whether, and if so how, SBTi’s legitimacy and accountability should be enhanced, considering its role in global climate governance, its status as a private charitable organisation and its appeal to ‘science-based’ methods. This article develops a theoretical framework built around the nexus of transnational regulators’ ‘goal setting’ and ‘normalisation’ activities, drawing inspiration from scholarship on transnational environmental regulation, global and domestic administrative law, and science and technology studies. It applies these theoretical insights to SBTi’s processes and outputs, with a specific focus on SBTi’s proposed incorporation of distributional considerations of equity and climate justice in its ongoing amendments to its Corporate Net-Zero Standard. Flowing from these, the article makes three specific recommendations for SBTi.
Constitution making can be weaponised to disrupt separation of powers (SoP) structures, but the connection between the ideas of SoP and constitution making remains under-theorised in the literature. The dominant normative theory of constitution making, the constituent power theory, has neglected this relationship partly by justifying how constitution makers do not need to respect, strengthen or establish a SoP institutional framework due to their ability to channel the unconstrained power of the people. This article argues that exploring the connection between the ideas of SoP and constitution making is a possible and desirable project. It identifies the conditions that can make such a relationship work and shows how constituent assemblies-a type of constitution-making organ-can disrupt SoP. The article proposes an analytical framework to examine those disruptions, focusing on the timing of their operation and identifying their normative implications.
The public interest defence fills gaps in statutory copyright exceptions. Initially, those gaps were illusory and they arose from an erroneous interpretation of the fair dealing defences. Later, however, real gaps emerged especially in relation to the application of the fair dealing defences to unpublished works and photographs. Granted that the public interest defence fills gaps in copyright exceptions, it should not be relied on concurrently with other defences.
I offer a systematic reading of Joseph Raz's account of the rule of law. Contrary to the conventional reading, Raz does not hold that the rule of law is merely a virtue of efficiency, valuable only to the same extent as the ends it serves. Although the 'sharpness of the knife' analogy supports this neutral instrumentalist reading, it should be rejected. On my moral instrumentalist reading, the rule of law is valuable without equivocation. And since Raz agrees with Fuller that law must always exhibit the rule of law at least to some extent, his view is that law is necessarily morally valuable for its protection of autonomy and dignity. But Raz's 'formal' conception does not arbitrarily neglect any aspect of this protection because its contours are shaped not by these values, but by the requirement that the rule of law constitute a distinctively legal value.
This article deals with the jurisdiction of the civil courts and employment tribunals in employment matters post-Brexit. It focuses on the somewhat defective transposition of the rules of jurisdiction in employment matters of the Brussels Ia Regulation in sections 15A and 15C-15E of the Civil Jurisdiction and Judgments Act 1982 and the unclear relationship between these rules and other rules that regulate jurisdiction in employment matters, most importantly employment tribunal procedure rules. By deconstructing the current law, this article discloses its considerable complexity and discusses possibilities for improvement.
One of the pervasive legal questions surrounding unpaid internships is whether they are compliant with equality law. This speculation, however, has not yet faced judicial determination. This article analyses the merits of such a claim, focusing specifically on whether the EU recommendation that permits unpaid internships can be regarded as 'invalid' for discriminating based on social origin, age and sex. Whilst the arc of the article suggests that a successful claim is plausible, the analysis goes further by providing new light on quintessential debates within equality law. This includes the scope of the largely untouched issue of class discrimination; whether treatment can be both unfavourable and favourable simultaneously; the use of 'common-sense' deductions over statistics in indirect discrimination; and the concept of 'broad discretion' within the proportionality test. With millions of young people completing unpaid internships, tackling the question of their compatibility with equality law is of paramount importance.
Analysis of authoritarian constitutions is a growing but still relatively underdeveloped body of literature. The traditional explanation is that these constitutions are no more than 'shams' or 'fig leaves'. William Partlett's book Why the Russian Constitution Matters: The Constitutional Dark Arts challenges this, placing the Russian Constitution at the centre of a phenomenon Partlett terms the 'constitutional dark arts', a practice combining a hyper-centralisation of power in the elected president with the claim to be upholding rights and democracy. In doing so, it offers both a new constitutional history of Russia and a new generalist paradigm of the 'constitutional dark arts' which can be applied in both authoritarian states and democratic states undergoing backsliding and creeping autocratisation. Partlett's book answers the question of whether the Russian Constitution matters in the affirmative, and will be of interest to scholars of comparative constitutionalism, democratic decline, and Russian and post-Soviet studies more broadly.
Utilitarianism today is a consequentialist theory: it requires that we maximise the good. By contrast, deontological theories constrain our pursuit of the good by independent demands of justice and directed duties to individuals. This article argues that the utilitarian duty to maximise welfare was originally embedded in the Protestant work ethic, a deontological theory invented by 17th-century Puritan theologians. Political strategies for inculcating the work ethic in the poor during the Industrial Revolution drove the elimination of deontological constraints from the foundations of utilitarianism and thereby turned it into a consequentialist theory. This episode, along with JS Mill's critique and transformation of Bentham's utilitarianism, illuminates the importance of recognising the irreducibility of the moral right to the good.
This article questions the claim that the UK is a unitary state. It argues that the UK was, and perhaps is, an empire. Empires are states in which questions of subsidiarity are inescapable and ongoing. Like unitary states, they have a supreme central government. But unlike unitary states, empires conceal multiple constitutional orders, overlaid with the veneer of sovereignty. The nature of the UK territory was ambiguous under empire. It still is. The UK is not a state where all parts bear the same relationship to the centre; rather, the constituent parts of the UK bear separate relationships to the centre. The article explores how imperial structures continue to influence that territorial settlement. The UK constitution ultimately resolved large-scale problems of subsidiarity in a global empire. It remains to be seen whether that same structure can solve smaller problems.
While the EU's Digital Services Act and the UK's Online Safety Act represent a major shift in Internet regulation, they suffer from a critical structural gap. These frameworks focus primarily on 'defensive empowerment'-enabling users to block or report unwanted content while neglecting constructive empowerment-the ability of users to decide what information they wish to see. The article argues that without collective institutions to signal content quality, users cannot assess quality beforehand, creating a market failure that pushes out expensive, high-quality content in favour of cheap, sensationalist, algorithm-driven content. To bridge this gap, the article proposes the creation of trusted content creators: voluntary, self-governing groups of like-minded content creators that certify content quality through cross-platform labels. By mandating that platforms allow users to filter their feeds through these external quality signals, the law can decentre the role of algorithmic curation and create new markets.
This article introduces the concept of patriarchal forestalling to explain why formally rights-protective systems frequently deliver recognition without remedy in cases of domestic abuse. Forestalling denotes an anticipatory repertoire through which legal and paralegal institutions diffuse and neutralise claims via five recurrent dynamics: normative socialisation, relational surveillance, pre-emptive discrediting, institutional redirection and procedural dereliction. Drawing on British Academy-funded qualitative research conducted across Maharashtra, Tamil Nadu and West Bengal, the article demonstrates how these mechanisms sustain the appearance of responsiveness whilst withholding meaningful protection. Addressed to a general legal readership, the article makes two principal contributions. Conceptually, it shifts the analysis from doctrinal design to the broader institutional ecology within which rights are operationalised. Methodologically, it provides a vocabulary for identifying when practice reconstitutes rights as matters of discretion. Although grounded in the Indian context, the framework travels beyond it, offering insight into how liberal legal orders may affirm rights at the level of principle while remaining structurally configured to forestall gender-equalising change.
Astronomers use constellations-groups of named patterns or sets of stars-to map the galaxies around us. More than simply maps of the sky, for centuries constellations and stars within them have enabled us to look into the past, as well as to navigate pathways into the future. So much for space, but what about law? What if legal historians were to look to the constellations? What if legal historians were to apply the tools and techniques of astronomers to feminists' relationship with law and law reform? What might feminist legal constellations look like? And how might they inform our understandings of law and feminist activism? In this article we outline a new methodology: a feminist constellations approach to legal history. We argue that if feminist legal history is to be truly transformative, it needs to be bolder, and to go further than it does at present. And to do this, it needs to locate feminists and feminist endeavour within feminist constellations in law.
Historians and constitutional law scholars are starting to uncover the imperial dimensions of the British constitution. But our accounts of the nature of authority in the British imperial context remain incomplete without an engagement with private international law, which played a significant role in conceptualising imperial authority. This article focuses on the forgotten interplay between imperial constitutional law and private international law. It shows how key doctrinal principles of private international law were referenced either as alternatives to or counterparts of key imperial constitutional law principles. Imperial actors would appeal to one or another image of imperial authority constructed by either imperial constitutional law or private international law to gain more autonomy or to tighten control. Far from being a relic of the past, the significance of this history can be traced in contemporary cases and debates about the nature of authority in the UK and its overseas territories.
This article re-examines the English Question in light of Brexit and the English Devolution and Community Empowerment Bill (DCEB). It argues that Brexit transformed England's long-standing constitutional absence from a manageable anomaly into a source of acute constitutional strain. With the external disciplines associated with EU membership removed, the UK's internal asymmetries have been exposed with greater force, revealing how England's lack of distinct institutional representation weakens domestic accountability and complicates the operation of territorial governance. Through an analysis of the DCEB-the most ambitious attempt yet to rationalise England's subnational governance-the article assesses whether recent reforms move England from administrative delegation towards constitutional accommodation. Applying four constitutional tests-identity, entrenchment, fiscal autonomy and voice-it concludes that while the DCEB enhances coherence and makes England's subnational architecture more visible within the Union, it stops short of devolution in any meaningful constitutional sense. England's governance remains derivative of Westminster authority, its institutions empowered yet fiscally dependent, politically included yet constitutionally insecure. The result is a more orderly form of constitutional absence: a settlement that manages England's diversity without providing a collective locus of representation, which leaves unresolved the deeper question of how the largest nation in the Union can be governed without being constitutionally acknowledged. More fundamentally, it leaves unresolved how the Union can remain stable when its largest constituent nation is governed through undifferentiated state institutions rather than recognised channels of self-government.
This article examines the upcoming commencement of the 'socio-economic duty' in section 1 of the Equality Act 2010 in England. The duty, which requires certain public bodies to have 'due regard' to reducing inequalities from socio-economic disadvantage when making strategic decisions, is part of a longer-standing 'reflexive turn' in discrimination law. Drawing on qualitative data from 267 civil servants and a survey experiment with a further 432, this article explores what English civil servants think about reflexive discrimination law. The article argues that engagement with the 'blame avoidance' literature can help to understand their attitudes. Drawing on blame avoidance research, the article argues that without adequate resources and enforcement, the socio-economic duty will be less likely to reduce socio-economic inequality and more likely to trigger blame games between central government and the public authorities subject to the duty.
The law's allocation of responsibility for disputed bank payments is important not only for banks and customers, but also, given the volume and value of payments, for the economy more broadly. This article examines loss allocation under common law, EU-UK regulation and the UK's 'world-first' scheme for 'authorised push payment' frauds, showing that the gross negligence standard of customer conduct is a common feature. Indeed, this 'slippery concept' sits at critical junctures, providing, in practice, the most relevant limitation to a bank's liability to refund payments. The article analyses what this standard means in English common law and in its regulatory contexts, and highlights the important connection between the two. It then draws upon decisions by the UK's Financial Ombudsman Service, amongst other sources, to explore how evaluating bank customer conduct works in practice, concluding that it is time for regulators to rethink the status quo.
Private law uses counterfactual reasoning to determine if loss-for which compensatory damages may be awarded-has been suffered because of a wrong: is the claimant in a worse position than it would have been in without the wrong? Counterfactual reasoning is, therefore, an essential part of private law. Yet, it is far from clear what this counterfactual for determining loss is. Different counterfactuals seem to be used, depending on the claim and the claim's circumstances. Counterfactuals remain, in general, an undertheorised concept. This article proposes a new, principled theory, and conceptualisation, of counterfactuals in private law. Its central claim is that, as a rule, the counterfactual for determining loss is, and should be, 'what would have happened without the wrong', but that there are, and should be, exceptions to this rule, if normatively justifiable.
The agenda-setting power of apex courts is important to their survival and success. Nevertheless, most of the literature on this topic has approached it from the perspective of the courts' public output, not the courts' private motivations. In this article, I explore how justices serving on the Taiwan Constitutional Court (TCC) exercise their agenda-setting power behind closed doors. Using the declassified minutes of TCC decisions, I show that justices manage their docket according not only to explicit procedural requirements, but also to myriad political, prudential, remedial and collegial factors. By manipulating the TCC's agenda, justices have expanded its judicial power and judicial legitimacy while avoiding political confrontation. These manipulations, however, have spawned a number of concerns, particularly with respect to rights bearers, judicial deceit and judicial overreach.
This article analyses the approach of the Northern Ireland courts to interpretation of the 1998 Belfast/Good Friday Agreement in the context of the 'no diminution of rights' obligation in article 2(1) of the Windsor Framework. It advances an alternative approach to the interpretation of the 1998 Agreement that is consistent with international law and provides a more robust basis for rights protection. The article sets out the sources of the rules of treaty interpretation in international law and their application in article 2(1) cases, and analyses the nature of the multi-party agreement part of the 1998 Agreement. It is argued that the multi-party agreement is neither a free-standing treaty nor an integral part of a treaty, and the rules of treaty interpretation do not apply to that instrument. The multi-party agreement, including its Rights, Safeguards and Equality of Opportunity part, should nevertheless be interpreted using a 'generous and purposive' approach. In accordance with existing precedents in UK constitutional law, the multi-party agreement should be interpreted generously and purposively due to its nature as a constitution for Northern Ireland.
