There is no doubt that being ‘critical’ about victim-blame requires ensuring first that it is the perpetrator and not the victim who is held responsible for sexual offending. At the same time, engagement with this topic requires critical acuity as to how victim-blame is identified, and to the boundary between raising legitimate questions about the presence or absence of consent in less than ideal circumstances, and falling back on to myths and stereotypes that are unfair to complainants and damaging to victims. This paper identifies and critiques three purported intersections of rape myths and victim-blame that have gained widespread acknowledgement within feminist legal studies: first, that a woman is blamed for voluntarily putting herself into circumstances in which ‘rape happens’; secondly, that a woman is blamed for ‘miscommunicating’ her refusal; and, thirdly, that consent is wrongly understood to have been given in circumstances where a woman in fact lacked the freedom to do so. This critique of methodological and analytical approaches to identifying victim-blame as a symptom of rape myth acceptance focuses on research published recently by the Office of the Children's Commissioner, ‘“Sex Without Consent, I Suppose That Is Rape”: How Young People in England Understand Sexual Consent’.

A growing number of jurisdictions treat ‘hardcore’ cartel conduct as crime, in the belief that the threat of incarceration is necessary for deterrence. The significant economic harm caused by cartels is generally undisputed, but there is disagreement over whether cartel conduct is morally offensive enough to justify criminalisation. Critics argue that it is another example of ‘over-criminalisation’, seeking to regulate an activity that is morally ambiguous. Those in favour have sought to formulate normative justifications for why cartel conduct should be crime. Many of these rely on the assumption that members of society expect markets to be competitive and believe cartels are undesirable. This paper makes a significant contribution by testing this question empirically. Public surveys from the UK, Germany, Italy and the US are used to critically analyse the extent to which normative justifications for cartel conduct have empirical backing.

The rules governing the acquisition of beneficial interests in family homes have generated a great deal of academic literature since their restatement, and apparent clarification, by the House of Lords in Lloyds Bank plc v Rosset. In what has become an all too familiar passage, Lord Bridge outlined the two methods by which such an interest can be acquired in the absence of writing. For a claimant to succeed under the first of these (the only one with which this article will be concerned), the court must be satisfied that there has been: (a) an ‘agreement, arrangement or understanding’ between the claimant and the legal owner to share the beneficial interest, evidenced by oral discussions between them; and (b) that the claimant has acted to her detriment, or significantly altered her position, in reliance on the agreement. If these requirements are satisfied the claimant will obtain an interest, according to Lord Bridge, by way of constructive trust or proprietary estoppel.

The Anti-Social Behaviour Order (ASBO) is one of the best known measures used to tackle anti-social behaviour. In keeping with the popular conception, the order is frequently used against young people. Of all ASBOs issued in England and Wales up to the end of 2005, roughly 40% were imposed on under-18s. This paper begins with a brief outline of the three principles at the heart of the celebrated Scottish children’s hearings system. With reference to these principles, and to the provisions which govern the use of the order against 12–15 year olds north of the border, the paper then discusses five areas of concern about the use of ASBOs against young people in England and Wales: the readiness to resort to ASBOs; the forum for ASBO applications; the terms of ASBOs; publicising the details of ASBOs; and custodial net-widening. The paper ends by suggesting reforms to the ASBO regime in England and Wales insofar as it is used against young people.

This paper presents the findings of the first empirical study of the experiences of young lawyers who have entered an increasingly uncertain profession following a highly competitive education and recruitment process. These ‘millennial lawyers’ are framed by a narrative of ‘difference’. This ‘difference’ is commonly articulated negatively and as a challenge to organisational and professional norms. However, our findings suggest a more complex reality. In its synthesis of work on structure and agency, with the temporal focus required by generational sociology, this paper advances an original approach to the analysis of organisational and professional change within contemporary legal practice. Drawing on new empirical research, it demonstrates that although our sample shares many field-level expectations, there is also considerable stress, unhappiness and discomfort. This is generated by a complex interaction between the lawyers’ expectations of practice, and the structuring properties of the field. Thus, the capacity for organisational and professional change is more comprehensively understood within a temporal frame. This paper challenges academic and professional paradigms of generational change within the legal field. It concludes with recommendations for legal educators and the profession which foreground the complexity of millennial lawyers’ expectations of practice.

When a company enters insolvent liquidation, the liquidator might take proceedings, under s 214 of the Insolvency Act 1986, against one or more of the company's directors on the basis that the director(s) engaged in wrongful trading. If found liable, a director might be ordered by a court to contribute to the assets of the company. This article examines whether subjecting directors to liability for wrongful trading is theoretically justifiable. After briefly explaining the origin, aims, rationale and operation of s 214, the article then rehearses and evaluates the arguments propounded by several scholars against any justification for a provision in the mould of s 214. Next the article investigates some of the reasons given for supporting the provision. Following this some consideration is given to whether it is possible to opt out of s 214, and, if not, whether this should be permitted. It is concluded, inter alia, that while s 214 is not representative of good regulation, some form of prohibition against wrongful trading can be justified on theoretical grounds.

In terms of the history of the social sciences, the latter quarter of the nineteenth century was characterised in no uncertain manner by neo-Kantianism. The revival in question was aimed at rehabilitating the Kantian concept of science as a system, unified essentially by the idea of a system rather than by any more realistic or historical classification of its subject matter. The most notable and far-reaching effects of this revival were to be the constitution of the sciences of linguistics and of law. In both cases the major portion of the nineteenth century had been dominated by attacks upon the received orthodoxies of universal grammar and of exegetical legal studies, respectively, and their displacement by the uncertainties of creationist and historical methodologies.

Ownership of the family home is usually not disputed until either the relationship between the spouses or cohabitants breakdown or there is a competing claim over the property by a third party. In such circumstances, determination of ownership rights becomes imperative. The Matrimonial Causes Act 1973 gives the courts adjustive powers to deal with disputes between spouses on the breakdown of the marriage. Notwithstanding this, there may be circumstances where it will be necessary or desirable to determine property rights between spouses. Furthermore, the adjustive powers of the courts are not applicable to cohabitants. Thus, in the absence of legal co-ownership in the family home, cohabitants and spouses who cannot rely on the 1973 Act will have to establish an equitable interest in the property. The analyses relied on are primarily based on property law and trusts principles and, more particularly, imputed trusts and proprietary estoppel. Under trusts principles, imputed trusts are usually taken to refer to resulting and constructive trusts.

This paper, which is based on a paper given at a seminar held at the University of Glasgow in November 2005, discusses the sovereignty of Parliament in the light of the decision of the House of Lords in Attorney General v Jackson, which considered the question of whether the Parliament Act 1949 and the Hunting Act 2004 were valid Acts of Parliament. The paper begins by explaining the background to the litigation, before going on to summarise the decision. Next, it briefly analyses the preliminary issues of standing and jurisdiction involved in the case, before going on to consider how the political background and political practice affected the decision of the House of Lords on the key questions in the case. The major part of the paper is devoted to a discussion and analysis in the light of constitutional theory of the extensive dicta in the case on the principle of the sovereignty of Parliament, which contrasts positivist and Dworkinian perspectives, and considers the question of whether the orthodox view of sovereignty is likely to be displaced in the foreseeable future by the view that Parliament’s legislative power is subject to legal constraints. The paper concludes that such a change in the rule of recognition is unlikely to come about merely because the judges change their view of the content of fundamental doctrines; changes of this nature require the assent of the other institutions of government.

In this paper, we set out what it means to offer a ‘biography’ of a law, illustrating the discussion through the example of the Abortion Act (1967), an important statute that has regulated a highly controversial field of practice for five decades. Biography is taken as a useful shorthand for an approach which requires simultaneous attention to continuity and change in the historical study of a law's life. It takes seriously the insight that written norms are rooted in the past, enshrining a certain set of historically contingent values and practices, yet that – as linguistic structures that can impact on the world only through acts of interpretation – they are simultaneously constantly evolving. It acknowledges the complex, ongoing co-constitution of law and the contexts within which it operates, recognising that understanding how law works requires historical, empirical study. Finally, it suggests that consideration of a law can offer a unique window through which to explore these broader contexts.

This paper considers the influence of the Supreme Court decision in Jones v Kernott on subsequent cases. It focuses on situations with which Jones was not directly concerned, namely where there is only one legal owner of a home and a non-legal-owning cohabitant seeks to establish that he has an equitable interest in it under a common intention constructive trust. The paper argues that while judges have mostly accepted that Jones is relevant to such sole-owner cases, they have had few opportunities (and taken fewer) to move beyond the restrictive approach of Lloyds Bank plc v Rosset and allow novel outcomes in the light of Jones as yet. It is contended that this state of affairs could ultimately produce a conservative approach that is undesirable for cohabitants who make indirect or non-financial contributions to shared lives, and remain without comprehensive statutory property and financial provision on relationship breakdown.

Aiding and abetting requires an ‘intention’ to assist the commission of the relevant offence. But what should ‘intention’ mean in this context? Does D have that intention just so long as she acts in a way which she knows will facilitate the commission of the offence which P intends to commit, or must she act in order to assist the commission of that offence?

On one view knowledge is sufficient, since D need only have ‘intended to do the acts which he knew to be capable of assisting or encouraging the commission of the crime’. A brewer who knowingly sells beer to someone who intends to resell it without a licence is guilty of aiding and abetting, as is a person who lends her car to someone who intends, she knows, to use it for a criminal venture.

The law's overseeing of administrations of pain-relieving treatment with inevitable life-shortening consequences is of crucial significance in view of the dogmatic approach of English criminal law to active euthanasia. As Lanham states in respect of society's treatment of terminal physical pain:

‘If the euthanasia option is not available, some other method will have to be found. In Britain and Australia that method involves palliative care and the hospice movement. By contrast, in the Netherlands active euthanasia is available and palliative care is poorly developed.’

The recent prosecution in R v Cox made it abundantly clear that causing death in order to relieve a patient of further pain and suffering amounts to murder under current law. By contrast, knowingly shortening life through the administration of pain-killing drugs was recently declared to be lawful by Lord Goff in the House of Lords in Airedale NHS Hospital Trust v Bland.

This article takes a critical look at common law constitutionalism, a theory which has received much support in public law circles of late. The first part of the article elaborates the common law constitutionalist position. The second part of the article assesses the cogency of the theory in terms of its ability to accommodate certain paradigmatic features of judicial review. The article concludes with the suggestion that public lawyers, in their forays into theory, might do better to look to the special role that judicial review plays in assessing the legitimacy of governmental action rather than its supposed connection with ‘fundamental principles of morality’.

Singapore's Westminster parliamentary system of government was adopted as a historical result of it being a British colony. In its post-independence constitutional development, the dominant People's Action Party political leadership had made a series of constitutional amendments to its original electoral system, introducing innovative schemes such as Group Representation Constituencies, Non-Constituency Members of Parliament, Nominated Members of Parliament and the Elected Presidency. These changes have resulted in an electoral system that is so different and divergent from the Westminster model that it should be regarded a unique regime of its own. This paper advances the view that the constitutional evolution of its electoral system is reflective of a political vision structured along elitist lines – underscored by a desire to restructure the voting behaviour of its citizens, and ensure predictability and the preservation of the status quo. It has been driven by paternalistic assumptions about what is beneficial for its citizens. This paper examines the subsequent implementation of the schemes, before reflecting on how it is a system that has the potential to affect adversely the development of political participation and political pluralism, and dilute democratic politics in Singapore.

Elizabeth Fisher, Bettina Lange, Eloise Scotford and Cinnamon Carlarne have delivered a hard but justified message: environmental law scholarship is still perceived by many in the field as immature, and this is a reflection of the methodological challenges posed by its subject. This paper expands on their argument that scholars should think more closely about what can be learnt from debates about method in the wider legal mainstream and interdisciplinarity as part of the process of developing the discipline. It locates what is called ‘classic’ and ‘novel’ environmental law scholarship at the margins of the legal academy, which is conceptualised as an imagined legal ‘space’. The paper then explores the ways in which insights derived from the environmental humanities and sciences can invigorate and mature environmental law scholarship by creating exciting new interdisciplinary contexts for the development of legal research methods.

The failure of rape law to convict more men and to protect more women appears to be attributable to the fact that underlying, and assumed by, the law is a male dominated conception of aggressive and possessive male sexuality and a misunderstanding of the real wrong of rape. The sentencing stage of criminal proceedings offers courts the opportunity to challenge these attitudes. Court of Appeal sentencing decisions in cases of marital and relationship rape are analysed and sentencing principles and practice which endorse and reinforce a male dominated conception of sexuality and the wrong of rape are criticised. So, it is argued, an intimate relationship between the offender and the victim should not be a mitigating factor. Nor should forgiveness be a special mitigating factor in cases of marital rape. And attempts to mitigate rape by explaining it in terms of emotional stress, an excess of seductive zeal or other ways that treat aggressive male sexual behaviour and female passivity as the norm, should not be countenanced. Instead, sentencing guidance should foster attitudes which conceive of sexuality as an expression of equal and sharing relationships.

8% of UK students have an ‘unseen disability’: a specific learning difficulty, autistic spectrum condition, or mental ill health. A department with 1000 students has, on average, 80 students with such unseen disabilities. These students have a variety of potential sources of legal redress if they consider a university has failed properly to accommodate their disability. The most plausible is a claim under the Equality Act 2010. We have experienced a lack of clarity in understanding the nature and extent of those Equality Act entitlements, and the corresponding obligations that fall upon universities, and their staff. These confusions occur in many contexts, but the one that is most important to students is their entitlements where assessments are concerned. We set out to explain the relevant law, and to consider how it applies to some, perhaps typical, unseen disabilities in the context of a range of approaches taken by universities in assessing their students. Our principal and important conclusion is that there is no ‘quick fix’ approach according to which someone may say that they are Equality Act compliant. However, there are several considerations which will increase (or decrease) the likelihood of compliance. In brief, these constitute: effective communication; procedures that secure individual decisions, rather than blanket policies or approaches; and what amounts to no more than good inclusive educational practice for all students.

This paper is concerned with when, if ever, deceptive sex should be criminalised. It defends the idea that it is necessary to distinguish between deceptions that will generally be punishable from those that will not and puts forward a novel framework for carrying out this task. Based on the concept of identity nonrecognition, this framework also offers a new way of understanding what makes certain kinds of deceptive sex wrongful. After setting out this framework, I analyse each of the deceptions that is most often carried out within ‘ordinary’ contexts, explaining why only some of these should generally be punished. The paper concludes by suggesting that identity nonrecognition has the potential to inform criminalisation debates more generally, and that its relevance extends beyond discussions about deceptive sex.

A great many people share the sentiment that it is a serious wrong to behave with gross disrespect towards deceased bodies. It may therefore come as a surprise to learn that, currently, English and Welsh criminal law is incapable of dealing with cases of corpse desecration. Drawing upon provisions found in other jurisdictions, I argue that this legal gap ought to be filled by a new criminal offence. This should turn on the objective wrong of disrespect to the corpse as an important symbol of a once-living person. This framing is important in order to correctly identify what it is that makes desecration rightly criminal, assign accurate labels and to avoid unwarranted over-criminalisation. I conclude by suggesting that only when such an offence is enacted will we be able to ensure that the respect that we deserve in life is reflected in the treatment of our deceased bodies.