Relational contract theory holds that the interpretation of a contract must take full account of the context and surrounding circumstances of the parties’ bargain so as to give effect to their respective intentions. This paper argues that if a relational treatment of contracts is to be institutionalised, in the sense of being utilised in a contract dispute to determine and give effect to the parties’ intentions, then it must operate at an abstract level. That is to say, rather than using relevant context to determine what the actual parties intended in the circumstances at hand, the contextualist enquiry should ascertain the relevant context by reference to what the parties would have agreed to in the circumstances, had they properly reflected on what their self-interest requires. I discuss the merits of this proposition by reference to a number of appellate judgments, which already endorse contextualism as a response to contractual ambiguity, and I ultimately apply it to the Supreme Court's judgment in Rainy Sky SA v Kookmin Bank.

Jurisdiction clauses commonly feature in high-value international contracts. Recently, these clauses are also increasingly utilised in international trust instruments. At common law, a contentious issue vis-à-vis exclusive jurisdiction clauses in trust deeds has been whether they should be upheld in the same way as their contractual equivalents. In obiter remarks in Crociani v Crociani, in 2014, the Privy Council stated that these clauses should be afforded less weight in trusts than in contracts. However, as this paper seeks to demonstrate, the reasoning underpinning the treatment of exclusive jurisdiction clauses in trust deeds in this manner is questionable. The paper's key contention is that exclusive jurisdiction clauses in trust deeds should be enforced in the same way as those in contracts. Accordingly, an exclusive jurisdiction clause in a trust instrument should be upheld, unless the claimant can establish a strong cause why the matter should be litigated elsewhere.

The changes to the Irish exclusionary rule introduced by the judgment in People (DPP) v JC mark an important watershed in the Irish law of evidence and Irish legal culture more generally. The case relaxed the exclusionary rule established in People (DPP) v Kenny, one of the strictest in the common law world, by creating an exception based on ‘inadvertence’. This paper examines the decision through the lens of legal culture, drawing in particular on Lawrence Friedman's distinction between ‘internal’ and ‘external’ legal culture to help understand the factors contributing to the decision. The paper argues that Friedman's concept and, in particular, the dialectic between internal and external legal culture, holds much utility at a micro as well as macro level, in interrogating the cultural logics at work in judicial decision-making.

I argue that instead of analysing a criminal offence's conduct element in terms of acts and omissions, we should ask whether the defendant has belied a contextually salient expectation as to how she should, or routinely would, conduct herself. Slightly different sets of expectations are salient depending on whether our interest is in questions of criminalisation, or the proper interpretation of existing offences, but the criminal law is normally interested only in conduct-tokens that belie a relevant expectation. Belying such an expectation need not itself suggest culpability, but it does mark out the conduct as remark-able, in the sense of being ‘worthy of remark’.

I argue that this ‘Remark-able Conduct Requirement’ (RCR) analysis helps us narrow the field of conduct-tokens that are normatively appropriate candidates for criminalisation, and when adapted for use in interpreting existing offences it: (a) generates familiar and plausible liability outcomes; (b) simplifies the application of the law; (c) offers a principled argument to limit the scope of offences drafted in overly broad terms, by excluding innocuous doings from potential criminal liability; and (d) suggests ways to make progress on philosophical puzzles about how we should conduct ourselves.

Sir Paul Vinogradoff was once well known for his historically contextualised approach to legal theory which held that legal ideas were the contingent products of social factors. Law was necessarily engaged with other subjects, and ‘historical jurisprudence’ could produce real insight into the nature of law – in part by placing theories such as analytical jurisprudence in context, evaluating and modifying theoretical models by reference to the contingent social facts of an era. This was part of the nineteenth-century turn to ‘science’ in history and a focus on methodology. Sir Henry Maine argued that legal history proved the insufficiency of analytic theories, but his method met with many criticisms, some of which Vinogradoff sought to address. However, Vinogradoff's insights have rarely been pursued or developed, with legal history favouring Maitland's more doctrinal approach, and legal theory rejecting historical jurisprudence – at least explicitly. Despite its imperfections, historical jurisprudence offers a rich and valuable way to understand law, including to evaluate analytical models such of those of HLA Hart, and as a methodology for dialogue between comparative and historical legal scholarship. It has, in fact, continued to do so without explicit recognition in the 100 years since Vinogradoff's death.

In most countries and universities, few legal scholars pursue their academic careers in a country that is different from their home jurisdiction. However, the UK is a rare exception, as its universities have shown a great willingness to appoint legal scholars from any legal tradition and any part of the world. As the topic of foreign-trained legal scholars is underexplored in the current literature, this paper aims to fill the gap. It identifies 539 foreign-trained legal scholars at Russell Group universities, which amounts to 36.69% of their academic staff in law. Subsequently, the paper presents the results of a survey which explored how respondents deal with the challenges of being based at UK universities, such as the possible expectation to assimilate to the UK legal environment, and considering the impact of the result of the Brexit referendum. Overall, the paper finds that foreign-trained legal scholars should not be regarded as (negative) ‘irritants’ to UK legal scholarship and education, but that they can be rather be seen as (positive) ‘change agents’ in their universities.

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.

Members of the senior judiciary have expressed concern about the ‘over-judicialisation’ of welfare in the context of homelessness decision-making and adjudication. This paper examines how those fears have been manifested and makes a link with the concept of proportionate dispute resolution (PDR). It argues that the statutory scheme incorporates elements of PDR and judges should therefore refrain from introducing additional layers. The courts’ denial of the application of Article 6 of the European Convention on Human Rights to the homelessness context is disputed, and the paper makes the case for continuing rigorous judicial oversight of front-line decision-making, recommending that attention is focused on assessing procedural safeguards rather than disputing the ambit of Article 6.

The online publication of employment tribunal (ET) decisions in England, Wales and Scotland marks a watershed moment, opening up new innovative avenues for legal research, and promoting transparency in labour law decision-making. Drawing on this ‘dataset’, and using age discrimination decisions as a lens to facilitate analysis, this paper reflects on the advantages and limitations of using online ET decisions as a data source to support labour law research. By considering matters of time in age discrimination decisions – both in relation to time limits for bringing a claim, and ET delays – this paper uses innovative empirical findings to map the limits of the individual enforcement model adopted by discrimination laws, and illustrates some of the barriers to successfully bringing a claim for discrimination.

Most universities (bar profit-making institutions) are charities as a matter of law but, historically, have been exempt from charity law regulation. This paper considers the statutory reforms of 2006, which sought to level the regulatory playing field by appointing ‘Principal Regulators’ of such ‘exempt charities’ to promote compliance with charity law. Focusing on the university sector – where some universities are now registered charities (and regulated by the Charity Commission) whilst others remain exempt – it will note how the reforms have resulted in the application of significantly different degrees of scrutiny and accountability, both between individual universities and between universities and other charities. In part, this is due to the statutory framework itself but, significantly, is also attributable to the radically different approach taken by the Office for Students, which replaced HEFCE as Principal Regulator in 2018. Possible improvements in regulatory practice and statutory reform are offered.

This paper explores the promise of pluralism in the realm of contract law. I begin by identifying and rejecting conceptual strategies adopted by monistic and dualistic approaches. Turning towards pluralism, I evaluate three versions in contemporary literature: pluralism across contracting spheres and types, pluralism through consensus and convergence, and pluralism through localised values-balancing and practical reasoning. I suggest embracing some pluralism about contract pluralism, by using these models to construct a framework of ‘meta-pluralism’, where at the macro-level, we are concerned with plural spheres of contracting activity; at the meso-level, a variety of trans-substantive interpretive concepts that receive some measure of juristic consensus; and at the micro-level, practical reasoning through particularistic analysis of case-specific considerations. I illustrate the meta-pluralistic framework through a case study on the varieties of specific performance, and explain how the proposed pluralistic framework enriches our understanding of the nature of contract.

This paper explores the impact of cuts and continued fee stagnation on publicly funded criminal defence in England and Wales. In so doing, we take an explicit focus on Wales, which has been neglected in socio-legal scholarship on criminal justice matters. Drawing on 20 interviews with criminal defence lawyers in south Wales, we examine how they have experienced the changes to criminal legal aid in recent years. The lawyers in this study largely considered underfunding as a key political issue, with criminal legal aid identified as an easy target, also highlighting concerns around the impact of underfunding on their practice and how they can work for clients. As such, lawyers queried whether there is a viable future for criminal legal aid. These findings have implications for Wales, and the whole England and Wales jurisdiction, as we will discuss throughout.

Total testamentary freedom in English law came to an end with the passage of the Inheritance (Family Provision) Act 1938, since replaced by the Inheritance (Provision for Family and Dependants) Act 1975. The Act introduced the family provision rule, which allows disinherited family members to apply to court for a financial award out of the estate. This paper critically re-examines the parliamentary proceedings, held between 1928 and 1938, which debated the merits of testamentary freedom and the need to limit the doctrine by introducing the family provision rule, then already in force in many of the Dominions. There were strong social arguments in favour of redressing unjust disinheritances, pitted against core values of personal freedom and private ownership. The paper will show that there were compelling merits in introducing the family provision rule and the Act has stood the test of time.

Public order as a protectable interest is an important criterion for determining a consistent and rational scope of crimes against public order. From the specific perspective of everyday life, Feinberg's theory of minimum welfare interests neglects those kinds of interests that relate to a smooth or harmonious life. Socio-legal perspectives make it clear that safety interests, which directly concern basic living (bodily existence), do not include various kinds of order interests – and thus life order interests in convenience, comfort and peace, distinguishable from safety interests that are protected by English public order laws, can be construed as the public order interest. By critically adopting Feinberg's individualistic approach to analysing public interests in three types of case, the test of being public is further clarified. Typical categories of public order are socially and normatively identified before concluding with a discussion of the effects the identification made by the paper might make to the scope and nature of public order law and offences.

This paper examines the extent to which law and regulation protects students renting from private individuals or private companies, as opposed to universities, in both of the main types of student accommodation, the private rented sector (PRS) and purpose-built student accommodation (PBSA). It first examines the different problems faced by students in both tenure types, notably issues of repair and the failure of PBSA providers to complete accommodation in time for the beginning of term. Secondly, it considers consumerisation of private renting and the extent to which a consumer protection law approach can assist tenants generally, and students specifically. Thirdly, the paper explains how power relationships between students and landlords and issues with access to legal advice restrict access to justice for student as tenants. It is argued that whilst consumer contract law and consumer protection law have something to offer student tenants (particularly in PBSA) a generic consumer approach to the rights of tenants is insufficient because the nature of the landlord and tenant relationship inhibits access to legal redress. It is concluded that in addition to improved consumer protections, a proactive approach by both local authorities and universities could significantly improve the experiences of students.

This paper critically investigates the law and economics of competition law enforcement in conflicts between workers and employers in the EU and the US. The conflict between worker solidarity and market competition attracts significant public attention due to the legal conundrum facing precariously employed gig workers. This paper reveals that in light of the strict consumer welfare standard underlying competition rules, competition law has become an overall disciplining mechanism impeding collective worker action beyond the limited case of the gig economy. Using a holistic theoretical framework comprising of neoclassical and Marxist exploitation theories, the paper shows that sound economic analysis justifies resolving the competition–solidarity conflict in favour of solidarity. After showing that the consumer welfare standard overlooks the idiosyncratic qualities of labour as a ‘fictitious’ commodity, the paper offers an original and inclusive ‘citizen welfare’ standard that takes into consideration how anti-competitive behaviour affects workers as well as consumers. As a result, the paper also contributes to the post-2008 debate on whether and how competition law could contribute to equality by shedding light on competition law's treatment of workers and their welfare.

This paper takes as its context the decision of the Solicitors Regulation Authority in England and Wales to abandon before the event regulation of lower court trial advocacy. Although solicitors will continue to acquire rights of audience on qualification, they will no longer be required to undertake training or assessment in witness examination, by contrast with other, competing, legal professions. Their opportunities to acquire competence outside the classroom will remain limited. The paper first explores this context and its implications for the three key factors of rights to perform, competence and regulatory accountability. The current regulatory system is then displayed as a Hohfeldian network of rights and duties held in tension between stakeholders intended to inhibit the incompetent exercise of rights to conduct trial advocacy. The SRA's proposal weakens this tension field and threatens the competitive position of solicitors. The paper therefore finally offers a radical alternative reconceptualisation of rights of audience in terms of Waldron's ‘responsibility rights’ as a solution, albeit one with significant implications for the individual advocate. This model, applicable globally, is closer to notions of societal good and professionalism than to those of the competitive market, whilst inhibiting incompetent performance and remediating the SRA's approach.

The pressure to distinguish high quality from lower quality law journals is intensifying. To contribute to this debate, citation-based and peer review-based ranking of law journals are paralleled in the paper, using qualitative and quantitative analysis. It is found that all law journals that are considered as journals of the highest quality by legal experts are also ranked highly in Web of Science (WoS) and that 40% of the law journals categorised as ‘internationally leading’ by the peers are not listed in WoS. This paper explores what the editors of some of the internationally leading law journals that are not listed in the WoS think about applying to be listed in it. The paper offers data to support the contention that legal scholarship is characterised by regionalism in academic publishing and citation patterns. It is submitted that there is no perfect indicator of quality, and that no evaluation system will ever convince every legal scholar in the world of its value. WoS could be adopted as a rigorous and internationally recognised index for law journals only if it were aligned more closely with the Leiden Manifesto.

Decisional privacy offers individuals the freedom to act and to make important decisions about how they live their lives, without unjustifiable interference from other individuals or the state. Children's perceived vulnerability, incapacity for rational decision-making and dependence on adults have been used to justify depriving children of decisional privacy rights and subjecting them to the exercise of adult power over the conditions of their lives. The aim of this paper is to articulate a theory of children's decisional privacy. It is argued that decisional privacy is valued as a condition that enables individual autonomy. A relational, gradual conception of autonomy is advanced, to explain how children can be recognised as having the capacity for autonomy, and in some circumstances, actual autonomy. This paper presents four fundamental principles of a children's rights approach to decisional privacy, which collectively serve to enhance children's meaningful participation in decision-making about their best interests, consistently with children's evolving capacities and the receipt of appropriate parental direction and guidance. The theory developed in this paper presents an opportunity for adult decision-makers to reflect upon how they make decisions for and about children, and how children can play a meaningful role in those decision-making processes.