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Despite recent attempts at judicial reformulation, the question of the effect of a plaintiffs illegal conduct on his right to pursue a common law negligence action for personal injury damages remains largely unsettled, and on an uncertain policy and doctrinal foundation. There is a continued obsession with public policy, whether expressed, as it is in England, as a matter of public conscience, or in Australia, as a proximity consideration preventing the finding of a duty of care. However formulated, public policy, in particular the public conscience, as an ad hoc means of determining the effect of a plaintiff's illegality, is unsatisfactory for this purpose, and has proved problematic and unmanageable for the courts. It is here submitted that personal injury negligence law, properly understood and deployed, does not require, nor is served by, the continued application of the illegality defence.
The term ‘constitutional convention’ tends to be attached indiscriminately to any regularity of conduct that is observed in the process of government. It is here argued, however, that constitutional conventions as properly understood are social rules which govern the relations between political parties or the institutions of government. Furthermore, this term is to be confined only to those social rules that are constitutional in character. Intra- party standards of conduct, in particular, have wrongly been accorded the status of constitutional convention. These considerations, together with a detailed examination of the precise status of constitutional conventions as part of the ‘morality’ of the constitution, lead to a re-assessment of the conditions under which constitutional conventions both come into existence and cease to exist.
The scope of duty of care concept developed by Lord Hoffmann in South Australia Asset Management v York Montagu (1997) AC 191 seeks to limit a valuer's responsibility for a lender's losses arising from his negligent valuation report. The limitation device stems from a laudable motivation. As the valuer provides only one of the considerations on which the lender relies to assess the loan proposal, it is intuitively unappealing to thrust the full loss onto the valuer. However, this limitation technique operates in a mechanical manner and does not deal with the loss attributable to the market fall in a cogent and principled manner. This article suggests that the key to a principled restriction on the valuer's responsibility lies in identifying the kinds of risks the parties were willing to assume. The author develops two techniques - the Constructive Alternative Transaction Discount and the Constructive Actualised Risk Discount - for reducing the valuer's extent of responsibility in a principled and cogent manner.
Successive studies have documented the institutionally marginalised status of many women academics. What remains unclear is whether such findings apply equally to women legal academics. This article begins the process of investigating the role, status and experiences of women legal academics, reporting the findings of the first survey into the representation of academic women in UK university law schools. The study presents a snapshot of the gender composition of law schools in October 1997, at all levels of seniority, together with data on the representation of women in each responding law school. It finds considerable differences between law schools, as well as an under-representation of women compared with men at senior levels. It is suggested that these patterns of the representation of women legal academics have important ramifications for legal education, the legal profession and the discipline of law itself.
Family law has not only become a specialism in its own right, but family law practitioners have claimed for themselves special characteristics. This article reviews the attributes and skills to which the legal profession, and particularly the solicitors branch, aspires. It notes that the ‘specialist’ forms of client care and case management, familiarity with rules and procedures and a conciliatory approach are not unique to family lawyering. Family lawyers also require themselves to have knowledge of ‘non-law’ matters, especially those relating to the welfare of children. On reviewing recent empirical research studies about the work of solicitors, the article asserts that, for family lawyers, non-law norms control their practice and form the framework for a very particular type of client care. The article then goes on to examine - by using research on solicitors attitudes to the ‘meaning’ of the concept of parental responsibility - how practitioners cope with the tensions inherent in modern family legislation. It concludes that solicitors in practice convey policy messages rather than clear messages about legal rights and remedies.