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Volume 30 - December 2010

Contents

Page 2 of 3

Research Article

  • Reconstructing European insolvency law – putting in place a new paradigm

  • Gerard McCormack
  • Published online by Cambridge University Press:
    02 January 2018, pp. 126-146

  • This paper critically examines the European Insolvency Regulation. It suggests the Regulation contains a fatal flaw at its heart; namely the ‘centre of main interests’ or COMI test governing the exercise of universal insolvency jurisdiction. The paper argues for greater jurisdictional flexibility to replace the COMI test and defends this proposal against charges that it will contribute to an excess of ‘forum shopping’ and encourage a ‘race to the bottom’. The American experience with bankruptcy court competition is considered in this connection.

  • A library for the modern law school: a statement of standards for university law library provision in the UK – 2009 revision prepared by the Libraries Sub-Committee of the Society of Legal Scholars

  • Published online by Cambridge University Press:
    02 January 2018, pp. 442-493

  • The Statement of Standards for University Law Library Provision is a comprehensive and flexible set of standards providing authoritative guidance for law schools and law librarians. It represents a broad and authoritative consensus of views. The Standards were originally drawn up by a consultative group established by the Libraries Sub-Committee of the Society of Legal Scholars in 1995 and approved by the Society after consultation with academic, professional and governmental bodies. They have now been comprehensively revised by a working party of the Libraries Sub-Committee, after extensive consultation, and this revision was adopted by the Council of the Society on 9 September 2009. The Standards themselves are expressed briefly and are designed to be of general application to libraries serving an increasingly diverse range of law schools and law school activities. They are applicable to the academic stage of legal education only (undergraduate and postgraduate), delivered through all modes of study, and are supported by a more detailed commentary.

  • Expert evidence: difficulties and solutions in prosecutions for infant harm

  • John Hartshorne, José Miola
  • Published online by Cambridge University Press:
    02 January 2018, pp. 279-300

  • This paper identifies and considers difficulties that gave rise to successful appeals from prosecutions where expert evidence was relied upon to demonstrate that defendants had killed or caused harm to infants in their care. It evaluates the extent to which these difficulties may be addressed by measures which have been introduced or proposed by way of tackling problems associated with expert evidence. Part of the paper is dedicated to an analysis of the Law Commission's consultation paper on the admissibility of expert evidence in criminal proceedings. The paper argues that trial judges may not be best placed to discharge the Law Commission's proposed gate-keeping test for screening the reliability of expert evidence. Expert evidence will often be ‘outcome determinative’ in prosecutions for infant harm, which is why we argue for the introduction of a specialist gate-keeping panel instead to determine the reliability of new theories and techniques.

  • Clarity and ambiguity: a new approach to the test of legitimacy in the law of legitimate expectations

  • Jack Watson
  • Published online by Cambridge University Press:
    02 January 2018, pp. 633-652

  • This paper examines the legitimacy element of the doctrine of legitimate expectations in English administrative law. It argues that the underlying principle is the voluntary assumption of responsibility that comes from analysing a promise as a social convention. From this underlying principle, it argues that the current ‘clear unambiguous representation’ test is insufficiently certain and instead advocates a three-stage test centred round the courts' ability to make an order, the objective construction of the promise and the decision makers' intent. This test, it is argued, explains the decided cases, as well as providing a robust structure for future decisions.

  • Copyright in music: a role for the principles of reverse engineering

  • James Griffin
  • Published online by Cambridge University Press:
    02 January 2018, pp. 653-673

  • The rise of popular music in the twentieth century has raised questions about the appropriateness of the current system of copyright law. Copyright law is based around the notion of the individual ‘romantic’ author, an individual who creates with his own innate thoughts. Copyright law provides an exploitable property right to authors – a right, in rem, which may be exercised against the rest of the world. It is a right that may be sold and transferred, a right to which fiscal value may be placed. The property paradigm of copyright is one that is exclusionary. Popular music reveals that copyright works may be collaborative in nature, and this can bring into question whether an exclusionary property-based model is appropriate. Historically, copyright has not always been based around the property paradigm; some early cases highlighted the ‘merit’ of the potentially infringing work, and they focused on the manner of creation of that potentially infringing work. Some later cases have also emphasised the manner of creation of a copyright work. These are cases that concern what is termed ‘reverse engineering’– a modern term that encapsulates how an earlier work is used in a later work. Paradigmatically, to focus on reverse engineering is to mark a move away from the property paradigm of copyright. This paper argues that to institute such a methodological approach would lead to a more accurate ontology and would thus lead to more efficient legal regulation.

Book Review

Research Article

  • Vindicating common law constitutionalism

  • Justin Leslie
  • Published online by Cambridge University Press:
    02 January 2018, pp. 301-323

  • This paper questions Thomas Poole's assertion that judicial review is not ‘value orientated’ (see (2005) 25(1) Legal Studies 146). In doing so, the paper seeks to demonstrate that the account of judicial review given by common law constitutionalist writers provides an accurate description of the approach taken by the courts in the last 10 years. The paper first considers Poole's objections to common law constitutionalism. It then proceeds to assess the writings of those relied upon by Poole against the case-law of the last decade. This is done by reference to three ‘themes’– the basis of judicial review; a substantive rule of law; fundamental values and constitutional rights. The paper concludes by suggesting that when a thematic approach to the theory is adopted, the case-law of the last decade provides vindication for the main tenets of common law constitutionalism.

Book Review

Books Received

Page 2 of 3