The direct action form of protest is becoming an increasingly significant form of political expression. This paper considers such protest in relation to the guarantees of free expression and peaceful assembly under arts 10 and 11 of the European Convention on Human Rights, now binding on United Kingdom public authorities under the Human Rights Act 1998. Its aim is to set out a framework of principle which would guide and underpin judicial approaches to the application of the Convention to domestic criminal law aimed at such protest, specifically ss 68 and 69 of the Criminal Justice and Public Order Act 1994. It argues that, because of the deficiencies of the Strasbourg case law in this area, an activist judicial stance, one reliant on underlying Convention values, will be required if there is to be any significant change to the traditional, illiberal domestic approach to direct action.

By common consent, the Education Act of 1944 was the most important educational reform of the century for England and Wales. This article seeks to reveal the role of a lawyer in the making of the legislation and thereby to reassess past interpretations of how the Act was put together. It is clear that the person who drafted the Act, Sir Granville Ram, had an impact on the content of certain sections. The article begins with an outline of the Act and competing interpretations of how it came to be made. It explores the context within which Ram, as a Parliamentary Counsel, did his drafting during the war years. It then turns to the making of clauses in four specific areas of reform. First, local education authorities were given the power to create new types of secondary schools, including comprehensive schools. Secondly, there was a new structure for regulating private education. Thirdly, the Minister of Education was given important new powers. Fourthly, women were no longer required to resign from teaching when they married. These four areas provide examples of how Ram could influence the shape of the statute, and they also reveal that on each occasion his influence was felt in a different way.

The common law has solved questions of liability arising in the context of precontractual negotiations by resort to a range of different doctrines and approaches, adopting in effect ‘piecemeal’ solutions to questions of precontractual liability. Consequently, debate has arisen as to how best to classify or categorise claims for precontractual work and as to which doctrines are best suited to solving problems arising from anticipated contracts. The purpose of this article is to consider this question of how best to classify (cases of) precontractual liability. The initial focus will be on the ongoing debate as to whether principles of contract law or principles of unjust enrichment can better solve problems of precontractual liability. I will be suggesting that unjust enrichment theory offers little by way of explanation of cases of precontractual liability and, indeed, draws on principles of contract law in determining questions of liability for precontractual services rendered, though it does so by formulating those principles under different guises. Irrespective, however, of the doctrines utilised by the common law to impose liability, it is possible to identify a number of common elements unifying all cases of precontractual liability. In identifying such common elements of liability, it is necessary to draw on principles of both contract and tort law. How, then, should cases of precontractual liability best be classified? A consideration of the issue of classification of precontractual liability from a perspective of German civil law will demonstrate that a better understanding of cases of precontractual liability will be gained by classifying such cases as lying between the existing categories of contract and tort.

Cross-examination is lauded within the common law tradition as the definitive forensic device for exposing testimonial infirmity. Victimological study of criminal trial proceedings has, however, revealed the extent to which cross-examination is used as a tool to humiliate, intimidate and confuse opposing witnesses. Particular difficulties confront children and those with learning disabilities as little reference is made during cross-examination to their special communicative needs. This paper reviews the tactics and techniques employed by cross-examiners to systematically destroy the credibility of those with limited language capability. The main aim of the paper is, however, to demonstrate the significant limitations of what may be termed an accommodation approach to the problems facing vulnerable witnesses, whereby ‘solutions’ are sought and crafted within the established trial framework. Such an approach ignores the very nature of adversary advacacy and the potent structural barriers to effective regulation of courtroom questioning within an adversarial system of trial.

The concept of the sovereignty of the nation state is at the very core of our understanding of public international law. Nevertheless, the concept is under constant pressure to adapt to the changing global situation. This is particularly true when sovereignty is examined in the light of environmental concerns. Is the traditional paradigm still relevant in an age when so many transboundary and global environmental issues confront the international legal order? This paper suggests that whilst sovereignty remains a central pillar of international law, it is one that increasingly must be responsive to the needs and concerns of an interdependent international community. It must not be treated as a static, immovable fact, but rather as a flexible tool through which states can more effectively act in an increasingly interdependent global society.

Issues of national sovereignty and membership in the body politic are central to many current political and legal debates surrounding ‘New Britain’ and Europe. Traditional understandings of citizenship and belonging are grounded in the ideal of a territorially limited and defined nation state. In this article, I explore a series of judicial and political decisions surrounding the fate of Roma or Gypsies, both as claimants to refugee status in Britain, or as subjects of domestic legal controls. I argue that these decisions construct this nomadic Other as a fundamental danger and challenge to the coherence of the legally protected body politic of the nation state ‘Britain’. I argue that the deconstructive excess found in the construction of the Roma as dangerous nomads, without allegiance to a fixed and geographically delimited nation state, might contain the kernel for a possible re-imagining of the basis of our understandings of citizenship and belonging.

Ethnic and cultural diversity within the UK has ensured that English courts regularly have to resolve cultural conflicts. This paper concentrates on cultural conflicts in the courts where there is an international dimension to this issue and where persons not resident in the UK seek the help of the English courts. The paper does this by reference to two areas of law, asylum and child abduction, which also allows a comparison between the approach to human rights by judges in the public and private law spheres. The paper aims to highlight the in consistency of the approach among judges in child abduction cases, where the role of human rights is unclear. It contrasts this with the judicial approach in asylum cases and English law in general, where we argue human rights are increasingly influencing the attitudes to various practices justified on a cultural or religious basis.

Although well over half of law undergraduates are women, in nearly all law schools they are likely to encounter more male lecturers than women. Few of them will meet a woman law professor and even fewer will see a female head of department. Compared with their male counterparts fewer women students and academic staff will go on to the top of their profession. There is clear evidence that women of all ranks in universities are paid less than their male counterparts. The university sector as a whole is only slowly coming to recognise that some proactive policies might he needed before equal opportunities for women and other groups traditionally excluded from the portals are assured. This paper explores some of the explanations for the position of women in UK law schools.

Breach of confidence is in danger of being enveloped by fiduciary doctrine. Law's ability to discipline confidence-breaking by computer hackers and persons unknown to their victims may be lost if this wrong's separateness is not maintained. Distinct moral imperatives and policies arise when confidentiality is protected. However, A-G v Blake casts doubt on the independence of breach of confidence and breach of fiduciary duty. Conflation of the wrongs may have occurred at Britain's highest appellate level. Similar developments can seen in Australia, Canada, Malaysia and New Zealand.

The article considers the present state of the law of character merchandising. It questions whether the law relating to character merchandising should be further developed and extended so as to give an individual a comprehensive right to prevent the unauthorised use of aspects of his personality by third parties in connection with the promotion or sale of goods or services. In this context the article rejects the creation of new comprehensive remedies such as a tort of appropriation of personality as being undesirable and impractical. The article maintains that unauthorised acts of personality appropriation or use are already subject to adequate legal control through the law of trade marks and passing off. In this regard the article further suggests that tortious remedies such as defamation, malicious falsehood, and, in restricted circumstances copyright, provide effective sanctions against the unauthorised use of an individual's persona in commercial enterprises in particular and special circumstances. These remedies supplement and complement the principal remedies provided by trade mark protection and passing off.

The first part of this paper asks if the Creditors' Bargain Model, long employed by insolvency scholars as the starting point for many an analysis, can explain or justify even the most distinctive and fundamental feature of insolvency law. After examining the defining features of the model's construction, the role of self-interest and consent in it, and its ex ante position, it is concluded that the Bargain model can neither explain nor legitimate the coercive collective liquidation regime. The second part of the paper develops an alternative model to analyse and justify insolvency law. The starting premise is that all (but only) those affected by issues peculiarly governed by insolvency law are to be given a choice in selecting the principles which would determine their rights and obligations. Once these parties have been identified, they are to be given equal weight in the selection process, since their legal status (whether they are employees, secured or unsecured creditors, etc), wealth, cognitive abilities, and bargaining strength are all morally irrelevant in framing rules of justice. This part of the paper introduces the notion of a constructive attribute, characteristics this society accepts its citizens should have in their role as legislators. So all parties affected by insolvency issues are regarded as free, equal, and reasonable. The model sketched out in this part of the article requires all principles to be selected from its choice position. Here, all the parties are deprived of any knowledge of personal attributes, and must reason rationally. It is shown that parties in the choice position would in fact choose the principles laying down the automatic stay on unsecured claims. The paper concludes with the demonstration that because of the construction of the choice position and the constructive attributes of the parties bargaining in it, the principles chosen are fair and just, and chosen in exercise of the parties' autonomy. As it happens, they are also efficient.

This essay offers a survey and analysis of the principal methodologies adopted and the aims pursued by ‘modern’ historians of the common law in England, Canada, and America, from Blackstone's time to the opening of the twenty-first century. From the beginning of this period through to the 1950s, the analysis reveals a steady current of contention amongst legal historians in respect of what legal history could do and just how these aims might be realised. The post-1950s era is characterised by the accelerating influence of the methodologies and objectives of extra-legal disciplines. These include, most especially, the work and techniques of social and political historians, and, eventually, the various manifestations of the postmodernist challenge to the segregation of ‘objective’ historical interpretation from the polemical and creative reconstruction of the past. It is argued that the infusion of this methodological new blood has been largely beneficial, enhancing the reach and subtlety of legal historiography, and boosting its overall capacity to act as an intellectually enriching discipline.

This paper argues that comparative law should become a core subject in all law degree programmes. By ‘core’ is meant a progression subject that will take the student through a three-year programme emphasising not what the law is but how one should think like a lawyer. Comparative law is ideal for this task because it emphasises two fundamental questions: what is ‘comparison’? And what is ‘law’? The paper demonstrates, first, how the rule model of legal knowledge is inadequate when it comes to comparing law and, second, how the techniques of comparison can reveal this inadequacy. These demonstrations are primarily founded upon a distinction, explained in the paper, between symbolic and non-symbolic knowledge.

Recently in this journal John Keown attacked the BMA Guidance published on ‘Withholding and Withdrawing Life-prolonging Medical Treatment’, arguing that it was, fundamentally at odds with the sanctity of life doctrine as properly understood, condemning the intentional termination of individuals' lives. In riposte it is asserted that even this modified version of the doctrine cannot support a defensible moral or legal standard for decision-making here, being founded upon an excessive emphasis on the mental state of the clinician and an inappropriately narrow focus on the effects of the proposed treatment on the ‘health’ of the patient, as opposed to being primarily driven by the (best) interests of the patient. The attempt to divorce treatment decisions from broader evaluations of the net benefit or other otherwise able to be attained by the patient from such treatment, including the taking into account of the individual's handicapped state, accordingly fails. Acceptance of such reality is, at the least, the first step toward a common language for further dialogue even between those with polar opposite opinions in this sphere.

In focusing on David Cronenberg's film eXistenZ this paper interrogates the place of cyberpunk and the cyborg in understanding and challenging law's bodies and embodied subjectivities. The genre proves descriptive of the gendered bodies of law's imagination, yet it also contains the possibility of dissolving the prescriptive binaries of law and other discursive fields. The essay works with Donna Haraway's contention that the cyborg in its boundary transgression is a metaphor for gender obsolescence. Relating cyborg theory to law, and noting how law has colonised other discursive fields, the oppositional/binary construction of men's bodies as bounded and safe whilst women's are constructed as fluid and dangerous is examined. To illustrate this the essay considers the industrial bodies of law's imagination, an area which replays this bounded/fluid binary. Reading eXistenZ, the essay attempts to sketch an alternative analysis which recognises and challenges the gendered bodies of law's imagination. In focusing on the issues of permeability, of boundary pollution and fusion, the analysis privileges a recognition of bodies as both bounded and fluid. In this the analysis challenges the construction of gendered bodies within these policies and hence the construction of gender appropriate employment, behaviour and environments.

The immunity from negligence enjoyed by advocates has recently been abolished by the House of Lords. The immunity had no statutory basis, but its existence was judicially recognised in 1967, in the case of Rondel v Worsley, and its extent and limits were considered in Saif Ali v Sidney Mitchell and Co in 1978. Since that time, the scope and extent of the immunity has been the subject of much case law. It has also received a great deal of criticism and many have argued for its abolition. This article examines the basis and justifications for advocates’ immunity. It discusses the scope, extent and criticisms of the immunity, the problems with its application, and the reasons for its eventual demise.

This paper briefly reviews the US case law dealing with the issue of birth control fraud and speculates on the possibility of a similar action succeeding in the UK. It then focuses on newspaper reporting of one such case. A common media reading of this case, and one which can also be detected in some academic commentary of similar cases, is to contextualise it as part of an ongoing ‘battle of the sexes’, where historic poles of inequality have become reversed and women have gained unfair (legal) advantage in procreative matters. It is argued that such an understanding is flawed and misleading, serving to distract attention from the legal structuring of these kinds of disputes. The paper concludes that the operation of the law can here be better understood as seeking to support the nuclear family in a way which can impact negatively on both individual men and individual women. The birth control fraud cases invite us to rethink the way that parental obligations are imposed and to justify more rigorously the choices which we make in this regard.