Much academic work continues to operate within the cramping and pervasive spirit of a black-letter mentality that encourages scholars and jurists to maintain legal study as an inward-looking and self-contained discipline. There is still a marked tendency to treat law as somehow a world of its own that is separate from the society within which it operates and purports to serve. This is a disheartening and disabling state of affairs. Accordingly, this article will offer both a critique of the present situation and suggest an alternative way of proceeding. The writer recommends a shift from philosophy to democracy so that legal academics will be less obsessed with abstraction and formalism and more concerned with relevance and practicality. In contrast to the hubristic and occasionally mystical aspirations of mainstream scholars, it presents a more humble depiction of the worth and efficacy of the jurisprudential and scholarly project in which ‘usefulness’ is given pride of place. Of course, these fundamental charges are not applicable to all legal scholars. Many scholars are engaged in work that not only challenges the prevailing paradigm of legal scholarship, but also explores exciting new directions for legal study. It will be part of the essay to acknowledge those contributions.

A trustee who has accepted trust obligations can retire from his trusteeship in four ways: (i) by virtue of the trust instrument which expressly or impliedly authorises him to do so; (ii) under s 36 of the Trustee Act 1925; (iii) under s 39 of the Trustee Act 1925 and (iv) under s 41 of the Trustee Act 1925, ie by permission of the court.

In regard to retirement under s 36 which provides for non-judicial appointment of new trustees, it is widely accepted that a trustee may so retire only by the valid appointment of another trustee in his place; retirement without replacement is only possible under s 39 and that would require consent to the retirement. An examination of the relevant case law reveals that it assumes rather than establishes the widely accepted view; but more importantly the effect of legislative changes culminating in the present s 36 removes the most probable reason for the view so that the formulation for it has, so to speak, disappeared.

The Court of Justice of the European Union (ECJ) in 2014 ruled in Digital Rights Ireland that the Data Retention Directive was invalid for exceeding the limits of proportionality in light of Articles 7, 8 and 52(1) of the EU Charter of Fundamental Rights (Charter). Subsequently, preliminary references from the England and Wales Court of Appeal and the Swedish Administrative Court of Appeal sought clarification from the ECJ as to whether EU law permitted a general obligation to retain traffic data covering all persons, all means of electronic communication and all traffic data without any distinctions, limitations or exceptions for the purpose of combating crime. The ECJ in Tele2 and Watson ruled that in light of Articles 7, 8, 11 and 52(1) of the Charter, EU Member States were precluded from adopting national measures which provided general and indiscriminate retention of traffic and location data of all subscribers and registered users relating to all means of electronic communication. The ECJ also ruled that Member States were only permitted to adopt data retention measures for the purpose of fighting serious crime, and only when access to retained data was subject to prior review by a court or an independent administrative body.

In 2018, the issue of the UK's data retention regime envisaged in Part 4 of the Investigatory Powers Act 2016 came before the England and Wales High Court. The High Court ruled that Part 4 was incompatible with EU law because access to retained communications data was not limited to the purpose of fighting serious crime, and it was not subject to prior review by a court or an independent administrative body. This judgment was regarded by the claimants, Liberty, as a ‘landmark victory for privacy rights’. However, this paper questions whether certain aspects of the High Court ruling are indeed a victory, by assessing its compatibility with EU law and the European Convention on Human Rights (ECHR).

War crimes allegations have dogged the UK military for decades. Yet there is no settled process to deal with them. Different legal responses deployed have all suffered from complaints of unfairness. This paper proposes foundations for a more satisfactory approach based on an existing three-part consensus. First, that norms governing individual and systemic conduct in military conflict are relatively undisputed; secondly, that the state has a non-negotiable investigatory duty should a suspected breach occur; and thirdly, that any investigation should take into account the context within which it is conducted. The paper then advances three propositions: (1) first order principles of practicability, expertise, and investigator independence should provide the non-negotiable foundations of any response; (2) second order or subsidiary principles including promptness, adequacy, reasonable transparency, and respect for basic standards of natural justice should apply when practicable; and (3) a standing institution designed to comply with the first and second order principles would provide a fairer process for all participants (accused, victim and the wider national and international communities) whilst also fulfilling coherence and legal certainty requirements. The paper concludes that current structures cannot fulfil these demands and it explores the basis for a better alternative.

Throughout the world, the corporate group structure has long proved troublesome to the creditors, and particularly the tort creditors, of undercapitalised subsidiary companies. In the wake of Australia's James Hardie asbestos compensation inquiry, Senior Counsel assisting the Jackson Special Commission, Mr John Sheahan QC, called for the Commission to ‘recommend reform of the Corporations Act so as to restrict the application of the limited liability principle as regards liability for damages for personal injury or death caused by a company that is part of a corporate group...’. Following this call, in May 2008 the Corporations and Markets Advisory Committee released a report on long-tail liabilities, making various recommendations for reform. Separately, legislation was passed making pooling available for insolvent group companies in Australia. This paper examines the long-tail liability suggestions and the 2007 pooling amendments. It will be argued that neither of these is adequate for the proper protection of tort creditors of insolvent subsidiaries. It then considers international alternatives which might satisfy Mr Sheahan's appeal for reform.

The use of proprietary estoppel to make or support claims to property is now common. Case-law tells us that the concept of unconscionability is central to a successful claim, but little guidance is provided as to what ‘unconscionability’ means or how it is to be established. It is often assumed rather than explained. This paper argues that unconscionability in fact has a reasonably clear meaning within the law of proprietary estoppel and that it can be used to define and confine proprietary estoppel within reasonably clear boundaries. It seeks to explain that proprietary estoppel is at heart an antidote to a lack of required formality in the creation or transfer of property rights and, consequently, that the proper meaning of unconscionability is linked to these formality requirements. Unconscionability is therefore not a cover for unregulated judicial discretion, nor a loose term to describe a general sense of unfairness, but a concept which can be used to discriminate objectively between valid and invalid estoppel claims.

Why does the mens rea of attempt require intention even though some lesser state of mind will suffice for the completed offence? What is the meaning of ‘intention’ in this context? Is intention required for all elements of the crime attempted or only for some? Can one draw a distinction between circumstances and consequences in this connection? Can crimes of negligence or of strict liability be attempted? Why do ‘impossiblc’ attempts cause such difficulty? Is there any meaningful distinction to be drawn between Anderton v Ryan and Shivpuri, or was Shivpuri the last word on the matter? It would be presumptuous to suggest that this article was the answer to all these questions: nevertheless it is suggested that light can be thrown on them by standing back and looking at the nature of a criminal attempt. The key to these and other puzzles, it is suggested, can be found in two concepts, the analysis of attempt as a crime with a missing element, and the notion ofintention as distinct from knowledge or foresight of consequences as stressed in Moloney and more recently by the House of Lords in Hancock and Shankland.

X (minors) v Bedfordshire County Council is by far the most important decision on the liability in negligence of public authorities since Anns v Merton London Borough Council. These two authorities, along with Dorset Yacht Co v Home Office, furnish the ground rules for such actions. The leading judgment in X v Bedfordshire CC, in which all his brethren concur, is given by Lord Browne- Wilkinson; the only other judgment being given by Lord Jauncey. The common thread running through this trilogy of cases is the emphasis on the significance of the element of discretion in the exercise of the statutory functions of a public authority: ‘Most statutes which impose a statutory duty on local authorities confer on the authority a discretion as to the extent to which, and the methods by which, such statutory duty is to be performed’.

The relationship between trade unions and the courts has always been a sensitive one, and no less so when the issue is how to deal with a union’s refusal to obey court orders. During most of this century enforcement has not been a serious problem because the nature of trade dispute law has meant that the courts have rarely had to establish their authority over trade unions; but during the era of the Industrial Relations Act 1971 and also since 1980 the situation has been rather different. This is because statute has drastically curtailed the ambit of lawful industrial action, and has also rendered unions directly liable, thus making conflict between unions and the courts inevitable.

It is difficult to capture, even metaphorically, the nature of law as practised in the criminal appellate courts when considering the fundamentals of the subject -the basic principles of mens rea. If law is treated metaphorically as a science, allowing, as Lord Denning suggested, its principles to be revised by the demands of justice, in the way that scientific principles are revised by the demands of experimental data, then there should at least be a coherent development of the subject where identifiable principles of law are matched to a more sophisticated grasp of the requirements of justice.

Of course, such a formal image is less fashionable today than it once was, and a more ‘critical’ perspective of legal materials may be taken. But here, too, we lack a suitable image to convey the current state of the law.

The case of Copelund v Greenhalf has puzzled students of land law for over forty years. It is usually taken as authority for the proposition that a claim to an easement will fail if it amounts, in effect, to a claim of exclusive possession of the servient land. The plaintiff, the owner of a strip of land leading to an orchard, had sought to restrain the defendant, a wheelwright with premises across the road from the orchard, from leaving vehicles awaiting repair on the strip of land. The defendant countered that he and his father had used the strip (save for enough space to allow access to the orchard) for storage of vehicles for 50 years; he therefore claimed a prescriptive easement, under s 2 of the Prescription Act 1832, to do so.

Any project to draft a criminal code has to compromise between the desirable and the politically possible. It may be that the draft now produced by the Law Commission, or something like it, is the best that can safely be backed, though the contrast between it and the American Law Institute's Model Penal Code (which also had to take account of political realities, and yet has been adopted in many States) is a painful reflection on our stodginess. It is hard to avoid the impression that the Law Commission have been too cautious in their approach, leaning too much in favour of bare restatement of the existing law and against modifications that experience or reflection show to be necessary.

Natural law is discussed by almost every modern writer on jurisprudence; but with a few exceptions - of which John Finnis' Natural Law and Natural Rights is the most substantial - the impression given is that it is of historical interest only, that it has in some way been discredited, or at least superseded, by legal positivism. The implicit idea - and here legal positivism borrows from Comte - is that natural law represented some earlier ‘metaphysical’ stage which was then followed by ‘scientific’ legal positivism. This account requires the existence of a natural law theory that dominated juristic and philosophical thinking until the eighteenth century, when it was overthrown by Hume and Bentham. Hume, the story goes, found the decisive argument against the natural law theory; while Bentham created the new theory oflegal positivism. The argument Hume discovered was that ought cannot be derived from is; and this, it is widely supposed, is fatal to all varieties of natural law.