At common law, any improvements made by a tenant (unless classified as ‘tenants’ fixtures' and, thereby, removable) form part of the freehold and, at the end of the lease, must remain for the reversioner. Subject to the law of waste and to any contrary stipulation in the lease, the tenant remains free to carry out improvements, but is not entitled to compensation. This common law approach can be viewed as a potential benefit to landlords when the improvement adds to the value of the reversion. It may, however, stand as a disincentive to tenants who might otherwise have effected improvements to their properties. It has fallen to Parliament to redress what is widely regarded as this lack of equity.

The European Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter the Convention) has been in operation for almost 40 years, the Commission and the court for more than 30 years. In the meantime, recourse to Strasbourg has become a built-in mechanism of judicial review in the Member States. In particular, art 25 of the Convention which entitles individuals to plead a violation of the Convention has turned into a corner-stone of a working system of human rights protection, since the court's first decision in 1960. Even though the court's output cannot compare to internal state jurisdictions, applications to Strasbourg have risen dramatically over the years.

One of the problems which arises in the tort of negligence is where the plaintiff is aware of certain characteristics of the defendant which indicate that the defendant is incapable of achieving the usual standard of care, and yet the plaintiff enters into or continues a relationship with that person. Entering a car driven by a drunk driver is a simple example. There seems to be a common feeling that such a plaintiff is ‘less deserving’ and that it is a necessary consequence of the fault system that he should bear at least part of the responsibility for his loss. Recent developments, particularly in Australia, have suggested different approaches to this problem which raise issues about the nature and role of the standard of care, as well as about the relationship between the standard of care and various defences to negligence.

One of the most distinguishing features of an insurance contract (being a contract uberrimae fidei) is that it attracts the duty of disclosure. As it presently stands, this duty unfortunately has drawn such criticism from many quarters for inflicting what is arguably one of the most onerous burdens upon the insured. The irony of the situation is that the original intention of the doctrine, as had been expressed by Lord Mansfield himself in the celebrated eighteenth century case of Carter v Boehm, was for both contractual parties–and not just only the insured–to exercise the utmost good faith in their dealings. However, all through the intervening years, the tide had almost entirely flowed in one direction. There has, hitherto, not really been any case law developing, or even spelling out, the insurer's duty of good faith. On the contrary, landmark cases such as CTI v Oceanus and Lambert v CIS have been only too generous in showering the insurer with so many privileges that from the perspective of the hapless insured the duty becomes almost like ‘an engine of oppression’.

‘The National Socialist rulers of Germany invented new ways of controlling the policy and action of other countries without subjecting them to a formal military occupation, and some day it may be necessary for our courts to consider whether conduct equivalent to the German practice of establishing complete and effective domination over professedly neutral countries by insinuating agents and specialist troops into key positions, while permitting their governments nominally to continue to exercise their functions, as a prelude to plunging them into war, amounts to enemy occupation or not’

It may or may not be possible to develop an Artificial Intelligence model of legal reasoning that accurately reflects the processes of the legal mind, but one positive result that could well emerge from all the research into such modelling is a fundamental reassessment of legal theory. The paradigm that legal reasoning is essentially a rule based activity may well have to be discarded in favour of an epistemological model that is very much more complex, in the systems sense of this term, than the hierarchical structure traditionally associated with jurists since the Enlightenment (if not since the Byzantines) and represented in one of its most perfect theoretical forms today in Kelsen's model. It is the purpose of this paper to examine, if only briefly, this challenge to conventional legal theory (Part I) and, using systems theory, historical jurisprudence and Justinian's Digest (Part II), to suggest an alternative epistemological model (Part III).

Lord Diplock, in Orakpo v Manson Investments, used language that indicated that the range of restitution, or unjust enrichment, is limited. Lord Goff, on several occasions, has been more amenable to the idea that, should a remedy be desirable in the circumstances of a particular case, the concept of restitution could, and should be utilised in a creative manner. Canadian judges have been more inclined than those in England to adopt the latter approach. As one of them once said: ‘Just as the categories of negligence are never closed, neither can those of restitution’. In more recent judgments Canadian courts have continued to show their willingness to extend the scope of restitution in two ways: (i) by the enunciation of a general concept of unjust enrichment that underlies the idea of restitution; (ii) by a broader, more innovative use of the traditional doctrine of constructive trust. Both these developments stem from a fundamental premise as to the ‘equitable’ nature of restitution.

The enforceability of the convenants in a lease after an assignment, whether by the landlord or the tenant or both, is a matter of considerable practical importance. In the case of long leases, assignments of the leasehold estate and of the reversion are a common occurrence; both will often change hands many times before the end of the term, creating a welter of potential parties to any action on the covenants. In addition, there may be sureties who have undertaken to guarantee performance of the tenant's covenants. The basic principles governing the parties' rights and liabilities in this field under the present law are well known, centring upon privity of contract, privity of estate and upon statutory rules found in ss 141 and 142 of the Law of Property Act 1925. The area is one of vital commercial significance to landlords, and which potentially affects the residential security and amenity enjoyed by tenants (in the case, for example, of landlords' covenants to renew or to repair). It is also a field in which many of the issues and concepts have been the subject of judicial and academic consideration for more than a century, yet a surprising number of uncertainties remain. The law consists of a complex set of rules, which together form something resembling an intellectual jigsaw puzzle, and one from which several pieces are still missing. The aim of the first part of this article is to highlight some of these gaps.

In 1870, Christopher Columbus Langdell introduced the case method of teaching at Harvard, and dramatically altered the course of legal education in the United States. His method, involving student examination of judicial decisions coupled with Socratic style analysis, ultimately gained widespread acceptance. Today, most US law teachers use the case method. They continue, to varying degrees, to use Socratic questioning as part of that method. But, despite the method's widespread adoption, it has always had critics including both law students and law teachers.

If an employee, as part of a programme of industrial action, refuses to work normally, what is the legal position when he performs only a part of his duties? This question has been the subject of much litigation in recent years, and raises issues of fundamental importance. At a practical level, it has to be determined whether and when the employee is entitled to any remuneration, and if so, how much? Related to this are the options open to the employer in the light of such action. At a theoretical level, questions arise concerning the proper scope of the law of contract, and its relationship to the law of restitution. This paper will explore these issues, and suggest an approach which can adequately deal with both questions.

One of the interesting facets of the decision of the House of Lords in Murphy v Brentwood District Council is the fresh interpretation which it has placed upon some of the earlier leading authorities. One case which has been subjected to this process of re-interpretation is the decision of the House of Lords in Pirelli General Cable Works Ltd v Oscar Faber & Partners. It was rationalised by Lord Keith as a case which fell ‘within the principle of Hedley Byrne & Co Ltd v Heller & Partners Ltd’. The aim of this short note is to subject this re-interpretation to examination and to suggest that, ironically, its consequence may be the adoption of the very proposition of law rejected by their Lordships in Pirelli, namely that the cause of action accrued on the date on which the damage was discovered or should, with the exercise of reasonable diligence, have been discovered.

In this essay I consider the reception, perception and construction of deaths by disaster. Catastrophies such as those at Aberfan, Zeebrugge and Hillsborough present a challenge to legal and political systems. They prompt immediate and long-term responses. Some of these are concerned with establishing the cause, some with preventing their recurrence and others with blame allocation. There have been public and not so public inquiries into them. In some cases there have been criminal prosecutions with suggestions of scapegoating, but all these disasters have one thing in common. They have been the subject of an inquest. To be more precise, each death has been the subject of an inquest, as are the 18,000 deaths from external causes, injuries or poisoning, which occur every year. Here I focus in particular on the role of the coroner's inquest and its relationship with other forms of public investigation in shaping public perceptions of disasters.

It was generally accepted that the House of Lords in Anns v Merton LBC introduced an ‘entirely new type of product liability’ into the law of tort by expanding liability in negligence in relation to the construction of defective buildings. The novelty of the action was to introduce liability in tort for the construction of the defective product itself and to allow a claim for economic loss resulting from the defect. The consequence was to blur some of the traditional boundaries between contract and tort claims and to cause controversy in relation to the nature of the allowable loss recoverable from the negligent act. In particular it led to the question of whether such claims fell into the category of ‘pure economic loss’: a loss not easily accepted in conventional tort jurisprudence.

It may be of some comfort to English and Welsh lawyers to know that they are not alone in having to face up to the challenge of the reform of the traditional basis on which they have practiced. The implications of the impending single market are resulting in moves in other EC member states towards a more competition oriented framework for the provision of legal services. During December 1990 the French National Assembly passed a law introducing major reforms to the legal profession. The rationale behind the reforms is the modernisation of the French legal profession in an endeavour to make it more competitive in the single market, as was made clear by M. Arpaillange, the then Minister of Justice when he said that, ‘there is no longer any need to underline the obsolete character of the separation of the legal profession in the light of the approaching single market’.

After the long discussion of the definition of murder, in the courts and in legal writings, and the deliberations of the Nathan committee (which in essence endorsed the present law, as proposed to be slightly modified in the Draft Code), it might have been hoped that this debate would now subside. But there remain some malcontents, whom William Wilson has now joined by his article in 10 LS 307. This propounds a definition of murder which in the author's view would bring ‘rationality’ into the law (assumed to be at present in some way irrational). His two main proposals are the abolition of the doctrine of oblique intent in the context of murder (or altogether), and the acceptance as an additional mental element for murder, of a purpose to create a lethal risk.

Professor Williams calls me a malcontent. I believe I have an excuse. The law of murder does not do what it should do. Present doctrine allows some who do not deserve the stigma of murder to be convicted, and allows others who do deserve the stigma to avoid it. This, in my view, is a failure of justice - of fairness. It is the result of judges, academics, and others believing that problems in the real world cannot be resolved by internally consistent legal rules. They are pragmatists. My plea for rationality in murder is nothing more pretentious than a repudiation of such pragmatism. It is a plea that the substantive purposes of the law of murder should find expression in formally rational doctrine.