The tort of passing off developed as an offspring of deceit, with the twist that it allows trade rivals, rather than deceived customers, to sue. The classic case is a trader ‘passing off his goods as the goods of somebody else: the defendant is liable for misrepresenting, innocently or otherwise, that his goods are the goods of somebody else. The plaintiff is the trader whose trade is thereby diverted or whose reputation is thereby harmed.

The classic case thus involves a misrepresentation as to the source of the goods. However, case law has shown that this is not the only relevant misrepresentation on which the tort can be founded

The Director General of Fair Trading has recently won the first case seeking an injunction to restrain the continued use of unfair terms in consumer contracts. This represents only the tip of the iceberg in terms of the activity of the Unfair Contract Terms Unit established to enforce the Unfair Terms in Consumer Contracts Regulations. The sparsity of reported judicial decisions does not mean that the Regulations have been ineffective; far from it, numerous contracts across a variety of economic sectors have been amended following complaints made under the Regulations. It may still be early days in the battle against unfair contract terms but, as will be shown, the Regulations are proving to be a highly effective weapon in the consumer's armoury.

The Consumer Rights Act 2015 seeks to consolidate in one place key consumer rights covering contracts for goods, services and digital content, and the law relating to unfair terms in consumer contracts. These are areas where there has been considerable activity at both a national and an EU level. In particular, the Consumer Sales Directive 99/44/EC, the Unfair Terms in Consumer Contracts Directive 93/13/EEC and the Consumer Rights Directive 2011/83/EU have all made significant changes to Member State law, promoting the idea of the ‘informed consumer’, able to assert his or her rights in entering consumer contracts. This paper will examine the extent to which the Act promotes the objectives of these Directives and the implications of the result of the June 2016 referendum that the UK should leave the EU. Does the Consumer Rights Act 2015 represent a valuable consolidation of EU and UK consumer policy, or are EU rights being absorbed into a distinctive national framework of consumer rights?

The Communications Act 2003 can be seen as yet another attempt to reconcile the contradictions resulting from the great schism between Market and Social Liberalism that dominated twentieth-century political discourse in the West, in this case applied to the intricacies of media regulation. In this respect, the Act is simply the latest manifestation of an on-going process of philosophical accommodation that has been characteristic of British media policy, at least since World War II, if not before. This accommodation has always been imperfect, and the debates over the Act's more controversial provisions indicate that the tensions between the competing schools of liberalism will persist well into the twenty-first century.

This paper seeks to relate strategic themes in water resources management to the practicalities of imposing particular regulatory measures on water uses and to protect aquatic ecosystems. Specifically, a contrast is drawn between the global imperative of Integrated Water Resources Management (IWRM) and the sectoral (issue-by-issue) approach to water regulation that has traditionally prevailed in both regional (EU) and national legislation. The intuitive attractions of ‘integration’ are contrasted with the challenges of interrelating this to the diverse purposes for which water legislation is adopted, both for human needs and for ecological purposes. These challenges are well illustrated in the EU Water Framework Directive (WFD) which purports to adopt an ‘integrated’ approach, but is actually concerned with water quality, largely to the exclusion of other water-related concerns. Insofar as the Directive does seek to secure integration between water quality and water quantity concerns in surface water, this is only done in a secondary or incidental way. Water flow becomes relevant only where specified environmental objectives under the Directive are not being met. However, the legally contingent status of flow has been bolstered markedly by recent guidance on ecological flows under the WFD Common Implementation Strategy. The significance of this guidance is discussed and related to the implementation challenges that it raises. In relation to the UK, and particularly England, it is argued that the response to addressing water flow issues arising under the WFD had been dilatory and inadequate. Concluding observations reflect on the global, regional and national challenges to integration of water legislation as they have been illustrated by the discussion of regulating for ecological water flows.

Given the burgeoning of genetic research and proliferation of human genetic databases, especially in the biomedical sphere, this paper explores whether the existing laws and regulatory structures for governing genetic databases in England and Wales are adequate. Through a critical survey of relevant rules, bodies and practices, it argues that the current UK framework is far from ideal in at least five major areas: (1) forms and styles of law used, especially the separate legislative regimes for physical biomaterial and data; (2) core definitions; (3) formal regulatory bodies, licensing and notification requirements; (4) ethics committees and other advisory panels; and (5) enforcement powers and sanctions. Such shortcomings could have major implications for stakeholders, hamper efforts to achieve European or international harmonisation of genetic database principles and practices, and undermine the UK’s standing as a world leader in genetics and biotechnology. Drawing on comparative analysis of governance strategies adopted in Estonia, Iceland and Sweden, the paper identifies alternative options and lessons from experiences abroad, suggesting possible avenues for reform that may warrant serious consideration in the UK.

Drawing on studies in governmentality, this paper considers the ways in which the selection and allocation of households for social housing have been conceptualised and treated as problematic. The paper urgues that the notion of ‘need’ emerged relatively slowly over the course of the twentieth century as the organising criterion of social housing. Yet ‘need’ became established as a powerful tool used to place those seeking social housing in hierarchies, and around which considerable expertise developed. While the principle of allocation on the basis of need has come to occupy a hegemonic position, it has operated it continual tension with competing criteria based on notions of suitability. As a consequence, this paper identifies risk management as a recurrent theme of housing management practices. By the 1960s need-based allocation was proving problematic in terms of who was being prioritised; it was also unuble to resist the challenge ofdeviant behaviour by tenunts and the apparent unpopularity of the social rented sector. We argue that the tramition to advanced liberalism prefaced a shift to new forms of letting accommodation bused on household choice, which have been portrayed as addressing core problems with the bureaucratically-driven system. We conclude by reflecting on the tensions inherent in seeking to foster choice, while continuing to adhere to the notion of need.

Although nanotechnologies create new and innovative opportunities in many industrial and technological sectors, they present a number of regulatory challenges. There is evidence to suggest that some nanomaterials may pose risks of harm to health and the environment. The nature of these risks, however, is profoundly uncertain. In the first part of this paper, I show that legislative provisions currently used to regulate nanomaterials are ill-equipped for this purpose. In light of this, I proceed in the second part to examine how risks from nanomaterials ought to be regulated. Using what loosely may be described as a cost–benefit analytical framework, I appraise alternative regulatory options and draw initial conclusions about which is likely to prove the most cost-effective.

As lawyers concerned with the regulation of economic activity, we applaud the recognition in Professor Charles Goodhart's recent Chorley lecture that much of the ‘law and economics’ of the past quarter-century has involved ‘too much one-way traffic’. If the field of law and economics has indeed largely, as Professor Goodhart suggests, consisted of a process of intellectual imperialism, specifically of the colonisation of law by economics, we consider it important to reflect on the reasons for this, and to make some suggestions to improve the collaboration between the two disciplines. In brief, we suggest that this interaction has been bedevilled by its tendency to reproduce the worst aspects of formalism in each discipline.

Professor Goodhart shows that the bulk of law and economics has consisted of a fairly unthinking application of standard neo-classical economic assumptions to legal phenomena which have themselves typically been conceived in conventional doctrinal terms.

Despite exerting a considerable influence over contemporary constitutional thought, there is a very real sense in which the political constitutionalism of JAG Griffith has been neglected. This paper seeks a genuine engagement with Griffith's work and, in doing so, offers a reconstruction and partial defence of Griffith's political constitutionalism. The article characterises Griffith's political constitutionalism as ‘agonistic’– that is to say, issuing from a belief in the inescapably conflictual nature of human association. Central to this agonistic political constitutionalism is the relationship between conflict and politics – or what might be termed the political management of conflict. This paper argues that Griffith's account of conflict, although central to his constitutional thought, is underdeveloped, not least in its failure to elucidate precisely what is to be understood by ‘politics’. It is thus that the paper draws on the work of Michael Oakeshott to propose an understanding of politics as the pursuit of intimations that, it is argued, can help draw out an important blend of conflict, continuity and contingency in Griffith's political constitutionalism.

Following concerns that the art market is being used to launder criminal money and fund terrorist activities, measures have recently been introduced to subject the market to the anti-money laundering (AML) regime – such as the EU 5th Money Laundering Directive (2018) and the US Illicit Art and Antiquities Trafficking Prevention Bill (2018). The expansion of the AML regime to include art dealers has been attributed to the failure of regulation and the vulnerabilities inherent in the market to laundering. This paper considers vulnerabilities to money laundering and examines the types of regulation that apply in the art market. The paper then goes on to analyse the application of AML criminal law and preventive measures in the UK context, demonstrating that art dealers can be criminally prosecuted for engaging in normal commercial activities. Even if dealers do comply with AML reporting rules, such compliance can significantly impact upon their business. These are important considerations given the government's emphasis on striking a balance between the burdens on business and deterring money laundering activities. Drawing upon the AGILE analytical framework, we remain sceptical about the continued expansion of the AML regime.

‘Landscape’ is relatively underexplored in legal scholarship, notwithstanding its occasional centrality to legal analysis, and the ways in which law contributes to the shaping of landscape. Wind energy is an especially rich area for the exploration of landscape; not only do wind farms consistently raise concerns about landscape, but the existence of climate change complicates the response to local concern. Most of the legal literature on ‘knowledge’ focuses on the ways in which different ‘expert’ knowledges find their way into, and then shape, legal processes and decisions. This article is more concerned with the ways in which the planning system receives different knowledge claims, and validates some of them. The discussion turns around four tentative categories of knowledge claim: expert or technical knowledge claims; lay (or sometimes local) knowledge claims; prior institutional knowledge claims; and professional planning knowledge claims. Knowledge of the complex, dynamic and plural idea of landscape in any particular case is constructed in the process of decision making and reason giving through a careful layering of these different sorts of knowledge claim.

Truth commissions have an intuitive appeal in squaring the circle of peace and accountability post-conflict, but some claims for their benefits risk utopianism. Law provides both opportunities and pitfalls for post-conflict justice initiatives, including the operation of truth commissions. Rather than adopting a heavily legalised approach, derived from Public Inquiries, an ‘holistic legal model’, employing social science fact-finding methodologies to explore pattern of violations, and drawing appropriately on legal standards, may provide the best option for a possible Northern Ireland truth commission.

The purpose of this paper is to consider how leading scholars are interpreting the role and status of the core tenets of legal scholarship in England and Australia – the tenets that have provided an element of unity in legal scholarship over the past century or so. Instead of focusing on the way that scholarship has diversified and expanded, the paper considers whether elements of the prior orthodoxy have remained: do the tenets persist, what status are they afforded and what impact will their presence have on the future identity of the discipline and its conception of law? The paper captures insights into the way that scholars – as opposed to administrators or managers – are interpreting changes in the discipline. It is based on the premise that scholarly attitudes can shape the discipline and that therefore such attitudes are worthy of study.

This paper reflects on the achievements of feminism within the legal academy. Rather than offer an encyclopaedic account of feminist legal scholarship, it seeks instead to define, in broad terms, the aims, the spirit and the methods of legal feminism, identifying the commonalities among feminist scholars. It suggests that it is the critical study of law as ‘a form of life’, to borrow from Wittgenstein, which perhaps best characterises the shared endeavour of legal feminists. The paper identifies the major intellectual and political difficulties encountered, and also engendered, by feminists in the course of their work, and it assesses the impact of feminism on mainstream jurisprudence.

The approach adopted by epidemiologists when attributing a causal mechanism to an observed statistical association is contrasted with the common law of causation in personal injury cases. By recognising the need to distinguish between probabilistic measures of (1) the strength of an association and (2) the fact-finder’s ‘degree of belief’ in the claimant’s causal hypothesis, the verdicts in a number of epidemiology-based cases, mostly in British courts, are shown to be questionable. The argument is then made for a wider application of proportionate liability, extending beyond defective drug cases (where epidemiological evidence is most often found) to medical negligence, occupational injury and tobacco-related litigation. An increased coherence in the common law of personal injury can be achieved without compromising the fundamental aims of tort and, it is argued, by reaffirming the importance of just one ‘policy’ precedent on liability for increasing risk.

This paper addresses the criminalisation of fabricated images of child pornography. Focusing on the new offence of possessing ‘non-photographic pornographic images of children’ (NPPIC) under the Coroners and Justice Act 2009, it assesses whether harm- and morality-based arguments legitimate the extension of the criminal law to this activity. I contend that harm may be caused to children by NPPIC that are depictions of real child sexual abuse, and images that depict the fantasy sexual abuse of a real, recognisable child. However, it is extremely difficult to find a legitimate basis for prohibiting the possession of fantasy, completely fabricated NPPIC through a reasoned application of the harm principle and thus criminalisation of such images is not justified. Adopting a liberal perspective, I argue that moral harm-based arguments ultimately fail to convince, since legal moralism or moral paternalism should not be acceptable grounds for criminalisation. I conclude that a stronger case for criminalisation would have been made had the offence been limited to NPPIC depicting real child sexual abuse, or featuring real, recognisable children, or targeted at creators and distributors rather than possessors.

This paper is concerned with how law organises and controls space. It offers a new history of enclosure in the context of early English colonialism. By drawing this connection, the paper opens up new lines of enquiry into how law organises and produces space at both the domestic and international scale.

Section 1(2A) of the Children Act 1989 establishes a statutory presumption that ‘involvement’ of both parents in their children's lives after divorce or separation is in children's best interests. This paper sets out to examine what effect this had had. The aim of the legislation was to improve the transparency and clarity of judges’ reasoning. This would help to reduce the numbers of parents litigating and would placate fathers’ rights groups who were damaging confidence in the family justice system. Drawing on a sample of reported cases, this paper concludes that, at the higher levels, courts are not implementing the presumption. Nor has the presumption succeeded in placating fathers’ rights groups or significantly reducing the number of cases coming to court. It appears that the presumption has had little impact and the government's aims have not been realised. However, where it is having some impact, the presumption may be putting mothers and children at risk.

This paper aims to lay the foundations for a more critical approach to the relationship between corporate social responsibility (CSR) and corporate law. Limitations on legislative approaches including directors’ duties, disclosure of information, sustainable decisions, direct promotion and corporate internal management structure are critically analysed, trying to find well thought-out and effectively implemented adjudication that provides meaningful instruction for regulating CSR. The paper explores the manner in which corporate law may contribute to accommodating CSR principles within corporate strategies, in order to establish a transformative legal regulatory framework within corporate law by using the authoritative legal mode to promote corporate regulatory mechanisms. The paper critically studies a few legislative measures supported by the relevant legislative experiences from various jurisdictions as examples of currently enforced CSR laws at national level, in order to offer comprehensive and potentially effective legislative suggestions for accommodating CSR elements. However, a ‘one size fits all’ approach is clearly not desirable, and these suggestions should be interpreted and implemented in a locally relevant manner, according to path dependence theory.