The aim of this paper is to reframe the taxonomy debate which has, in recent years, come to dominate private law theory. We argue that the debate to date has been flawed by two fundamental mistakes. First, little attention has been paid to how legal taxonomies are actually used. This, we argue, is regrettable: how we build a taxonomy depends on why we build a taxonomy, and a clearer focus on this question produces an approach that is very different from the approaches that currently dominate private law theory. Secondly, both sides in the debate have misunderstood what legal concepts are, and hence tend to misuse them. We argue that legal concepts are Weberian ideal types, and use philosophical theories of concepts to put forward a very different understanding of how concepts acquire content and are used in the legal system. Putting these together, we argue for a far more developmental, and historically informed, approach to taxonomy and to legal concepts generally.

In this paper, stimulated by the publication some years ago in France of a small book on medical reasoning, legal and medical reasoning are compared. The question that is asked is whether the differences between the two types of reasoning will permit one to have a better understanding of some of the methodological and epistemological issues associated with legal reasoning. It will be argued that although medical and legal reasoners do share things in common, legal reasoning, perhaps unlike medical reasoning, is actually concerned less with the explanation or even comprehension of texts or the facts of a dispute (explicatio causæ) and more with what will be termed the ‘manipulation’ of facts (accommodatio factorum). Lawyers purify and (or) construct ‘virtual’ factual situations out of perceived ‘actual’ factual situations in order to make them conform or not conform in an isomorphic way with factual situations implied by a legal text or precedent. Medical reasoning is equally complex but facts are read in a different way.

The paper argues that the margin of appreciation (MoA) doctrine of the European Court of Human Rights (ECtHR, or Court), should be understood as, inter alia, an underenforcement doctrine, according to which Convention rights should not be applied to their full conceptual limits. Underenforcement is justified by institutional considerations relating to the Court's role and competence. Although institutional considerations have been theorised normatively, the paper claims that ‘low‐level’ empirical inquiry into the comparative institutional competence of different decision makers across the Council of Europe is critical in explaining MoA. Such comparative empirical analysis ties shared institutional responsibility and subsidiarity with certain traits of decision makers when determining Convention rights. In this context, the paper briefly compares the decision making abilities of different institutions. It concludes by stressing that under certain circumstances the Court can be worse placed than national authorities to decide on violations of Convention rights. This is corroborated by the Court's case‐law concerning Convention rights impinging on the economic and social policies of States Parties.

This paper examines the new legal framework on consumer Alternative Dispute Resolution (ADR) in the EU. Its primary contribution lies in identifying that harmonising the complaint submission in a pan-European Online Dispute Resolution (ODR) platform, and directing parties to nationally approved ADR entities that comply with minimum standards, will not fulfil the potential of an extra-judicial consumer redress system. This paper proposes key functions that the ODR platform should incorporate if it is to provide effective redress. This paper also argues that a successful ODR platform should include built-in incentives that encourage parties to: (i) participate in approved ADR processes; (ii) settle complaints with little or no intervention from neutral third parties; and (iii) ensure voluntary compliance with final outcomes.

This paper explores the distinction between being autonomous and having capacity for the purposes of the Mental Capacity Act. These include where a person misuses affective attitudes in making the decision; where a person's decision is not authentic to their values; and where the Mental Capacity Act prevents use of the context or outcome of the decision in assessing capacity. These gaps mean that a person can be found to have capacity, even though they are not properly autonomous. This, we argue, justifies the courts’ use of the inherent jurisdiction to protect vulnerable adults who, while having capacity are not able to act autonomously.

Conflicts between domestic precedents and subsequent decisions of the European Court of Human Rights have resulted in the lower courts following prior domestic decisions even when convinced that they will be overruled on appeal. The standard interpretation of the decision of the House of Lords in Kay v Lambeth holds the lower courts to domestic precedents that are manifestly inconsistent with the subsequent Strasbourg jurisprudence and admits only the most limited exception. This paper advances an alternative approach to the relationship between the domestic courts' obligations under the Human Rights Act 1998 and the doctrine of precedent by analysis of the nature of the doctrine of precedent and the reasons offered by Lord Bingham in his leading judgment in Kay. This analysis is then extended and applied to two recent cases in which the lower courts have considered themselves bound by a decision of the UK's highest appeal court that fails to give due effect to the applicants' Convention rights.

The abolition of the default retirement age is creating challenges for UK employers, and universities in particular. Operating without mandatory retirement may have consequences for performance management, the creation of opportunities for new generations of workers, the scope for workforce planning and employment costs. Drawing on comparative experiences of Australian universities, which have been operating without mandatory retirement since the 1990s, this paper critically examines whether these consequences have materialised in Australia. It draws out a number of lessons for UK universities from the Australian experience.

The legal framework concerning liability of communication intermediaries for defamation is under-conceptualised. The paper thus develops a holistic doctrinal approach to liability of speech intermediaries, such as Internet service providers (ISPs), booksellers and newspaper vendors, for defamation. It views intermediary liability for defamatory speech against the backdrop of communication theory and freedom of expression doctrine. If properly conceptualised, as suggested in this paper, the law of defamation can accommodate the cyberspace-specific legislation in Arts 12–15 of the e-commerce Directive and s 5 of the Defamation Act 2013, as well as the innocent dissemination defence in s 1 of the Defamation Act 1996, now to be read together with s 10 of the Defamation Act 2013. The paper establishes six tenets of intermediary liability for defamatory content. In particular, it argues that ‘publication’ is to be conceptualised as a merely factual requirement for defamation, whereas the defence of ‘innocent publication’, also known as ‘innocent dissemination’, is a fault-based concept. Communication intermediaries are thus to be considered ‘publishers’, even if they have a merely automatic role in the publication process, but they may avail themselves of the defence of ‘innocent publication’. This defence has to be applied in compliance with the human rights of the parties involved.

Rankings of law schools and law journals are part of a trend towards more emphasis in academia on transparency and accountability with regard to the quality of research and education. Globalisation increases the need to compare law schools and law journals across borders, but this raises complicated questions due to differences in language, education systems, publishing style and so on. In this contribution, it is argued that ranking of law schools and law reviews runs the risk of driving us away from quality based on substance towards proceduralisation and quality assessment based on proxies favoured by managers of law schools, funding bodies and government agencies, instead of by the forum of legal scholars.

Should people be required to know information about themselves that arises from their genetic test? This question is highly relevant given the NHS's plans to sequence 100,000 whole genomes before 2017. The approach to this issue in the USA generated significant opposition to requiring knowledge, on the basis that it interferes with autonomy. This piece presents a different perspective, arguing that requiring knowledge may not undermine the legal conception of autonomy, giving reason to doubt that it would be unlawful to require people to have genetic information about themselves. Following this, the piece presents an alternative principled position that might support a legal recognition of the interest in not having information about oneself; namely that of preventing personal harm. However, this approach runs into difficulties if the reasons for requiring knowledge are also based on preventing personal harm. The argument considers how interests might be balanced in this competing harms context.