Focusing on a single, uncontested will is unusual within legal studies. And the extensive literature about EM Forster has overlooked the significance of his will. This article endeavours to address these silences and develop a conversation between the two. It first explores the place of inheritance in Forster's life and novels; and in doing so highlights his interest in inheritance as both a concept and a practice. Turning then to his will, it argues that it reveals a reflective personal and political engagement with concerns about kinship, sexuality and intimate citizenship which are central to current debates within socio-legal and sociological scholarship. This reading consequently argues that his will is a text that can be read alongside his other work; that it represents a ‘posthumous publication’. While a close, critical reading of the will of one very particular individual, the article identifies the challenges posed to testators in negotiating the public and private nature of wills and highlights both the rich potential and the difficulties that these texts present for socio-legal, literary and biographical scholarship.

This paper proposes the concept of a ‘hybrid institution’, defined with reference to certain institutions within the UK's constitutional order which provide oversight of national security processes. It focuses in particular on the Commissioners who have overseen and oversee the use of investigatory powers and the work of the intelligence services. These institutions, as was once said of another hybrid institution – the Independent Reviewer of Terrorism Legislation – are designed in order to operate within situations in which ‘potential conflicts between state power and civil liberties are acute, but information is tightly rationed’. They are ‘hybrid’ institutions in that they marry certain of the features characteristic of political institutions with others characteristic of legal institutions. The paper considers the relevant institutions and the role they play within the national security constitution, showing how their hybrid status facilitates the performance of a function which neither fully legal nor fully political institutions could fulfil.

The introduction of s 33 of the Criminal Justice and Courts Act 2015, criminalising the disclosure of private sexual images, has been seen as a welcome step forward for curbing this abuse of privacy and the harmful effects it has on victims. However, while s 33 sidesteps any reference to ‘revenge pornography’, as the phenomenon has been termed in popular vernacular, little attention has been paid to the way in which narratives of revenge implicitly underpin and imbue the new offence, particularly its specific intent requirement. We argue this has serious implications for the treatment of s 33 offences in the courts and for sentencing. Drawing on cross-disciplinary conceptualisations of revenge, its recent criminal-legal history, and examples of media and parliamentary rhetoric, we claim that despite innumerable attempts to turn debate on disclosure of private sexual images towards consent, harm and privacy, there lurks within these discourses an assumption that the victim must have done something to deserve the treatment she received. Until the multiple harms of disclosure of private sexual images are recognised and explicit recommendations are made that scrutiny of victims’ behaviour should normally be inadmissible, we argue that the offence offers little in the way of redress.

Since its inception, patent law has had many faces, manifesting different aims and functions. The latest recalibrations of the aims and functions of patent law are striking because – at its core – patent law itself has not changed significantly in this time. This paper examines the chameleon-like nature of the function of patents, tracking historical transformations from the privilege as an instrument of trade policy, to patents as an incentive/reward to invent and disclose the invention, and the most recent shift towards viewing patents as necessary for innovation. In particular, the paper addresses whether the latest shift represents a reversion to privilege-like functions, due to the analogous focus on commercialisation, and argues that this is not the case because of the fundamental move to focusing on patentees rather than society as a whole and to seeing patents as property.

The word ‘estoppel’ had its origins in the old French word ‘estoup’, meaning plug or stopper. The principle of estoppel by representation of fact operates in a manner which is consistent with those origins. Where a representation of fact is relied upon by a representee, the effect of the estoppel is to stop up the mouth of the representor, and prevent him or her from asserting facts contrary to his or her own representation. The rights of the parties are then determined by reference to the represented or assumed state of affairs. An estoppel by representation of fact can be used defensively, where an action which would otherwise be available to the plaintiff is not available on the assumed state of affairs. It can also be used aggressively, to establish a state of affairs in which a cause of action exists, where that cause of action would not be available on the true state of affairs.

There is an ongoing debate amongst hate crime scholars about the categories of victims that should be included within hate crime legislation. Some commentators argue that affording protection to groups based on predefined characteristics results in many victims being excluded from the legislation. They would prefer a more inclusive approach that would offer protection to a potentially limitless number of groups. This paper considers the question from a doctrinal perspective, and argues that a principled way of deciding the characteristics of hate crime is required. It will conclude that the core concern of hate crime legislation is with the furthering of the broader equality agenda and, as such, the victims of hate crime should form an exclusive group based on those characteristics protected under equality legislation. This approach can help provide a theoretical framework for hate crime legislation that can be more easily accommodated within criminal law principles.

The Rana Plaza disaster of April 2013 was the most prominent of several incidents that have highlighted poor standards of business behaviour in the supply chains of well-known brands. Analysis of these incidents has attributed these poor standards to an institutional structure in which lead firms with strategic power outsource production into global value chains and pursue business models that involve rapid product upgrading and require low costs and fast turnarounds in production such as the garment industry's ‘fast fashion’ business model. This paper aims to complement that analysis by showing how trade marks, as the main legal anchors of brands, have reinforced the strategic power of lead firms, enabled them to outsource production and encouraged them to adopt business models of this kind. The paper will also evaluate the claim that brands mitigate their harmful effects by transmitting countervailing pressure back onto their owners because they provide salient targets for bad publicity and blame, as coverage of the Rana Plaza disaster showed, which can threaten their owners with reputational damage. It will be argued that this countervailing pressure has a limited effect and cannot be relied on without more to address the issues that the Rana Plaza disaster revealed.

The UN Convention on the Rights of Persons with Disabilities is the first international human rights convention to state expressly that discrimination includes the failure to provide reasonable accommodation. The duty has been described as transformative but has also been critiqued for its lack of structural impact. This paper evaluates the transformative potential of the reasonable accommodation duty encompassed by the Convention, and considers how its potential can be realised. It argues that the duty is transformative because of the substantive equality it provides for individuals, and because it requires both active engagement with persons with disabilities and proactive consideration of barriers to inclusion, in multiple contexts. However, it contends that full realisation of the duty's transformative potential depends on appropriate legislative formulation. This may be a problem in dualist states where application of the Convention is not automatic and pre-existing legislation may be perceived as satisfying the obligation. The paper supports this contention with an analysis of Irish law, arguing that the full transformative potential of the reasonable accommodation duty has not yet been achieved in Ireland, and identifying the reasons for this. The paper examines the practical consequences of inadequate implementation and highlights pitfalls and best practice.

This paper concentrates on the ethical tension created by lawyer billing. In particular, it examines the tension between a lawyer's commercial imperative to make a profit and their ethical obligation to promote their clients interest over their own. Conventionally, this conflict is resolved through the lawyer providing disinterested advice on (their own) costs and the client granting informed consent to billing arrangements on that basis. This paper uses empirical data to suggest that notions of disinterested advice and informed consent are deeply flawed when it comes to lawyers' fees. Clients passively consume exploitative practices. As a result, this paper argues that, where possible, regulators should supplant informed consent with an approach requiring simple charging: reducing professional discretion over charging practices and strengthening the market-based regulation of price. This requires a significant simplification of lawyers' fees wherever possible.

While recent public attention has focused on disputes concerning the fate of the dead such as the Bristol and Alder Hey organ retention scandals, this paper considers a much less publicised area of dispute which has nevertheless generated a significant amount of case law and potentially affects a much wider proportion of society. The paper looks at conflicts which arise when relatives cannot agree on how to bury their dead, the motives behind such disputes and the factors which influence their resolution. It examines the legal framework which has been applied by courts to date, proposes alternative solutions to this framework and questions the potential impact of the Human Rights Act 1998 on family burial conflicts.

Conflicts between domestic precedents and subsequent decisions of the European Court of Human Rights have resulted in the lower courts following prior domestic decisions even when convinced that they will be overruled on appeal. The standard interpretation of the decision of the House of Lords in Kay v Lambeth holds the lower courts to domestic precedents that are manifestly inconsistent with the subsequent Strasbourg jurisprudence and admits only the most limited exception. This paper advances an alternative approach to the relationship between the domestic courts' obligations under the Human Rights Act 1998 and the doctrine of precedent by analysis of the nature of the doctrine of precedent and the reasons offered by Lord Bingham in his leading judgment in Kay. This analysis is then extended and applied to two recent cases in which the lower courts have considered themselves bound by a decision of the UK's highest appeal court that fails to give due effect to the applicants' Convention rights.

Boundaries are of the utmost importance because they establish size and shape. In so far as changes in the law affect the elements making up the boundaries of the firm, such changes can be expected to have an impact on the size and structure of firms. Theories which are capable of explaining how operations within the firm are different from those outside can be used to draw the boundaries of the firm and so to define its essence or nature. In this article three theories which give substance to the boundaries of the firm are presented and analysed.

The major debate in recent corporate legal theory has been between the coercionists and the contractarians. This can be caricatured as a dispute between those who follow institutional arguments, seeing the firm as a concession of the State, and those who follow economic theory, seeing the firm as a nexus of contracts.

The abolition of the default retirement age is creating challenges for UK employers, and universities in particular. Operating without mandatory retirement may have consequences for performance management, the creation of opportunities for new generations of workers, the scope for workforce planning and employment costs. Drawing on comparative experiences of Australian universities, which have been operating without mandatory retirement since the 1990s, this paper critically examines whether these consequences have materialised in Australia. It draws out a number of lessons for UK universities from the Australian experience.

Regulatory interest in ‘hedge funds’ has intensified in the wake of the collapse of the Long-Term Capital Management (LTCM) hedge fund, and the growing retailisation of the sector through vehicles such as ‘fund of funds’ hedge funds. Though recognised by the Financial Services Authority (FSA) as playing an important role in the financial system, the hedge fund sector continues to pose formidable regulatory challenges. In particular, there is a real possibility that hedge funds and ‘prime brokers’ will increase their risk profiles, thus threatening not only their own solvency but, more importantly, the stability of the financial system more generally. Similarly, there exist problems surrounding issues such as asset valuations and side letters which raise heightened fears about conflict of interest abuse and investor protection. While any attempt by the FSA to subject the sector to closer regulatory scrutiny needs to be sufficiently robust to ensure that the above regulatory concerns are adequately addressed, any measures adopted must not be so heavy handed as to drive lucrative hedge fund business further offshore to less heavily regulated centres. In striking the right balance, a further complication is that of ‘moral hazard’– to the extent that the FSA seeks to tighten its grip on the hedge fund sector through more exacting regulation and oversight, there is the worry that such moves will encourage investors and financial market operators to take less care over their investment decisions. Although it is clear that prime brokers and other market counterparties have very real incentives to engage in private supervision of the hedge funds with which they deal, given the presence of significant market failures there is a danger that the private interests of these entities will not always be fully aligned with the public good. I argue that the FSA’s reliance on private interests and incentives to regulate an industry, the collapse of which could have serious public consequences, is an understandable yet ultimately deficient form of regulatory strategy. It is understandable because of the obvious limitations of the FSA’s scope for unilateral action. Yet it is deficient because the FSA must do more to challenge the complacency of the current international regulatory consensus – one that the FSA has helped shape, and one that its recent reform measures are part. This challenge would, at the very least, require minimum standardised disclosure requirements to be imposed on hedge funds, and for the full risks that these funds take to be fairly reflected in the cushion of capital that they are required to maintain, as well as the ‘margin requirements’ and ‘risk management’ systems they are required to adopt. These reforms would, if instituted at the international level, represent an important first step in helping to ‘bring to heel’ an industry which has assumed for far too long that it is a law unto itself.

Statistics from HM Revenue & Customs predict that receipts from inheritance tax will amount to some £3.56 billion in the tax year 2006/07. This compares to £1.68 billion in 1997/98. This paper explores the reason for the large increase in inheritance tax revenues and, in the light of those findings, together with a consideration of the recent public reaction to the changes to the inheritance taxation of trusts announced in the Budget 2006 and incorporated in the Finance Act 2006, argues that, whereas the justification for a tax on the value of property in a person’s estate on death (or within a certain number of years before death) was rooted in equity, equity now forms the argument for its abolition or, at least, its substantial reform.

This article seeks to argue that the new offence of causing death by careless driving is undesirable and ought not to have been created. From a legal perspective, the offence goes against some fundamental principles of criminal law and, from a practical view, it will fail to rectify previous problems with the pre-existing offences available as criminal charges in cases of road death. Furthermore, it will not satisfy the public’s appetite for a more punitive approach to drivers who kill. It will be argued that the law in this area should not be driven by this latter consideration but that it should be used primarily as a method of increasing road safety. A radical alternative offence structure of general driving offences is proposed with this as its objective.

Recent years have seen a rise in the number of manslaughter prosecutions following deaths caused by improper medical treatment. Such prosecutions of individual doctors are problematic because, in many cases, a complex pattern of failures has contributed to the death. One alternative approach would be that of pursuing corporate manslaughter prosecutions against hospital trusts, but current law makes such prosecutions difficult. The Law Commission's proposed offence of corporate killing could, if adopted, form the basis of prosecutions following some hospital deaths. The article considers arguments for and against the use of criminal law in response to deaths caused by medical negligence.

In his book Courts on Trial Jerome Frank suggests that we might turn our attention, when studying law, to the trial rather than the appellate courts. It is what goes on there that should inform us when talking of justice. Frank was worried over the unsatisfactory state of fact gathering in these courts and the book is not just a critique of what happens but also suggests many reforms. In this paper I am going to be concerned with his slashing attack on adversarial methods of trial in a chapter in the book revealingly entitled ‘The Fight Theory vs the Truth Theory’.

This paper considers the highly discretionary equitable redistribution scheme governing ancillary relief in Ireland pursuant to the Family Law (Divorce) Act 1996. The paper begins by drawing on the most up-to-data empirical data highlighting the principal difficulties inherent in the Irish ancillary relief system as currently applied and placing the spotlight firmly on the need for reform. It then considers the constitutional parameters that limit any change to the ancillary relief system applied before presenting a detailed proposal for reform. It concludes that although legislative change may be politically challenging, the commonly cited constitutional impediments to reform do not preclude the adoption of an alternative ancillary relief scheme. Instead, the paper argues that the adoption of a more rule-oriented, ‘pillared’, approach to ancillary relief provision may better resolve the challenges currently faced and ought to be afforded serious consideration in Ireland.

Over the past two decades, there have been significant legal developments aimed at securing and enhancing the participation of vulnerable witnesses in criminal trials. Yet, there remains relatively little regard for the fact that many defendants, including those who are not deemed to be vulnerable, are unable to participate in criminal proceedings in a meaningful sense. This paper aims to address two questions. First, why should defendants have participatory rights and be capable of meaningful participation in criminal proceedings? Second, why has it proven so difficult to attain meaningful participation of defendants? It is contended that barriers to meaningful communication between the defendant and the court could be dismantled without great difficulty, but continue to exist because due regard is not given to the normative rationales for participatory rights and defendant participation.