While much has been written about American legal realism, the nature of its decline is comparably less carefully documented. Jurisprudential lore has it that ‘we are all realists now’. Although it is far from clear who ‘we’ might be, the statement is commonly taken to mean at least three things: that academic and practising lawyers alike have heard and heeded the message that law is not a certain system of rules; that legal doctrine is nowadays conceived in the context of the wider legal process; and that the legal process is nowadays understood to be part of the wider social system. The supposition, in essence, is that modern lawyers think like realists, even if they do not commonly consider themselves to be realists. While the weaker ideas and arguments developed by so-called realists have been discarded, the better ones have been absorbed into modern legal thought.

Ever since November 1974, when the Home Secretary, Roy Jenkins, announced his ‘Draconian’ Prevention of Terrorism Bill, strong emotions have been aroused by the legislation. On the one hand, ardent supporters claim that the Acts have been ‘increasingly useful and necessary for the police’ and ‘the most powerful weapon in our counter-terrorist armoury’. On the other hand, there have been strident critics who not only denounce the Acts as a ‘flagrant violation of basic civil liberties’ but also support ‘the struggle against British imperialism [even if it] inflicts violence on citizens and can have tragic consequence’. This clash of opinions has persisted during the most recent re-enactment of the legislation in Parliamentary session 1988–89.

Reservations of title clauses have enjoyed mixed fortunes in recent times at the hands of the courts in Britain. On the one hand, the House of Lords has upheld the validity and effectiveness of an ‘all-liabilities’ reservation of title clause. On the other hand, claims on the part of a supplier to resale proceeds have been rejected in a string offirst instance decisions. Reservation of title has however been viewed more favourably as a phenomenon in New Zealand. In the leading New Zealand case Len Vidgen Ski and Leisure Ltd u Timam Marine Supplies Ltd. a tracing claim succeeded. Moreover in Coleman u Harvey the New Zealand Court of Appeal gave vent to the view that the title of the supplier is not necessarily lost when mixing of goods, which are the subject matter of a reservation of title clause, has occurred. There are now a series of more recent New Zealand decisions, some of them unreported, dealing with many aspects of reservation of title.

The concept of defectiveness is undoubtedly of crucial importance in the structure of the Consumer Protection Act 1987. The definition of the term ‘defect’, upon which will depend the actionability ofdamage caused by a product, is set out in s 3, which reads as follows:

(1) Subject to the following provisions of this section, there is a defect in a product for the purposes of this Part if the safety of the product is not such as persons generally are entitled to expect; and for those purposes ‘safety’, in relation to a product, shall include safety with respect to products comprised in that product and safety in the context of risks of damage to property, as well as in the context of risks of death or personal injury.

It is easily assumed that the use of the language of fundamental rights protection by the European Court of Justice translates directly into an extension of the actual protection of those rights within the European Community. It is the purpose of this paper to question that assumption.

Whilst it would appear to be widely accepted that the initial motivation for the adoption of the terminology of fundamental rights by the European Court of Justice was a desire to defend the supremacy of Community law over national law, a close analysis of certain recent cases in the European Court shows that the court has begun to use rights talk in a different way.