LAW I. Candidates should answer THREE questions. 2. The law on the rectification of contracts is in a mess. Discuss.

Transcription

1 LAW I Candidates should answer THREE questions 1. How does one identify a contractual penalty and what is the best explanation for why it is unenforceable? 2. The law on the rectification of contracts is in a mess. Discuss. 3. Is the law on remoteness of loss in contract best understood as agreement-based or as an external rule of legal policy? 4. Hypothetical release damages - otherwise known as Wrotham Park damages serve several different functions. Do they? 5. Is there any good reason to distinguish between acts and omissions in the tort of negligence? 6. Is there a tort of privacy? 7. Is it helpful to recognise a difference between denials and defences in the law of tort? 8. Are common law and equity fused? 9. How is the law on tracing best understood? 10. Is the law on proprietary estoppel best viewed as one single doctrine or as several doctrines? 11. Do academic lawyers worry too much about taxonomy? 12. A holds the right to a car on trust for B. C damages the car. What rights does B have against A and C? 13. Does the law on unjust enrichment recognise subjective devaluation? 14. Did A make a mistake of law, triggering the right to restitution from B in a claim brought in 2014, where she paid B 50,000 in 2012 in accordance with a decision of the House of Lords that was overruled in 2013? 15. When, if ever, may the corporate veil be lifted? 16. The law on the attribution of acts or knowledge to a company depends on the context and purpose of the legal rule in question. Discuss. 17. Does and should the bona fide purchaser of stolen goods, without notice that they are stolen, acquire good title to the goods? 18. In the light of the legalisation of same-sex marriage, is a civil partnership a legal anachronism? [OVER]

2 19. Was the House of Lords correct in Johnson v Unisys Ltd (2003) to refuse to develop the common law on damages for wrongful dismissal in deference to the statutory law on unfair dismissal? 20. Assess the impact of the Jackson reforms on civil justice in England. 21. Should the British Government support the harmonisation of contract law across Europe? 22. Critically assess the law on the separability of arbitration agreements. 23. How should English private international law deal with the assessment of damages where a person, who is domiciled in England, is negligently injured while on holiday in a foreign jurisdiction? 24. How should we best understand the values underpinning the English law of obligations? 25. Is it a fiction to regard statutory interpretation as being based on Parliamentary intention? September 2014 Fellowship Examination All Souls College

3 LAW II Candidates should answer THREE questions 1. Do definitions of the Rule of Law focus too closely on legislation rather than the common law? 2. Is it possible for a society to exist without law? 3. What is wrong with a floodgates argument? 4. Can law be properly understood without reference to its having a moral purpose? 5. Are sanctions central to the nature of law? 6. What is the point of punishment? 7. Is the criminal justice system institutionally sexist? 8. Should intoxication ever be a defence to a criminal charge? 9. Should administrative law be regarded as a branch of human rights law? 10. Should administrative law be codified? 11. Are there any limits to the sovereignty of the UK Parliament? 12. Does the UK need a written constitution? 13. To what extent, if at all, are companies subject to human rights obligations? Should they be? 14. Some theorists have seen a potential in proportionality for rationality, transparency, objectivity, and legitimacy, which the doctrine cannot actually deliver. [ENDICOTT] Discuss. 15. Is the Court of Justice of the European Union an activist court? 16. To what extent does EU law on free movement go beyond prohibiting discrimination? 17. What contribution has competition law made to the development of the EU internal market? 18. Labour lawyers have placed too much hope in the capacity of the Human Rights Act 1998 to transform their subject. Discuss. 19. Is there a coherent distinction between direct and indirect discrimination? 20. How feudal was English land law before 1660? [OVER]

4 21. Why was English law not studied in English universities before the later nineteenth century? 22. Should law undergraduates be required to study Roman law? 23. Compare the English tort of negligence with the following provision in French law: Every act of man, of whatever kind, which causes damage to another, obliges the person by whose fault the damage was caused to put it right. (Art Code Civil). 24. Should international law permit the use of force to achieve humanitarian ends? 25. Is recognition by other states determinative of the status of an entity claiming to be a state? September 2014 Fellowship Examination All Souls College

5 LAW I Candidates should answer THREE questions 1. Is the law of obligations best understood as a system of applied morality? 2. Are Restatements of English law a good idea? 3. Explain the relationship between contract and tort. 4. Subject to there being an inconsistent express term, is there always an implied term in a contract that the contract must be performed in good faith? 5. Almost all the old intellectual baggage of legal interpretation has been discarded [LORD HOFFMANN in Investors Compensation Scheme Ltd v West Bromwich Building Society (1998)]. Discuss. 6. To what extent, if at all, can a contracting party recover damages for loss suffered by a third party? 7. The law on causation in the tort of negligence is in a mess. Discuss. 8. Should the tort of conversion impose strict liability? 9. Critically examine the law on co-ownership of land. 10. Equity is not a separate subject. Discuss. 11. Does a beneficiary under a trust have a proprietary interest? 12. Is there a defence of good consideration in the law of unjust enrichment? 13. Does the law allow backward tracing? Should it do so? 14. Should internet file-sharing of copyright material ever be lawful? 15. When, if ever, can one pierce the corporate veil? 16. Should anti-assignment clauses be valid? 17. What is the meaning and scope of the rule that documentary letters of credit are autonomous? 18. What are the legal issues raised by the idea of same-sex marriage? 19. Does the repudiatory breach of a contract of employment ever automatically terminate the contract? Should it do so? [OVER]

6 20. Is English collective labour law compatible with Article 11 of the European Convention on Human Rights as interpreted by the European Court of Human Rights? If not, what reforms would you recommend? 21. Critically assess the Jackson reforms of civil procedure and costs. 22. Is the recent trend towards mediation at the expense of litigation to be welcomed? 23. Should foreign judgments be recognised more readily? 24. Is the recast Brussels I Regulation an improvement? 25. When, if ever, should the Supreme Court defer to Parliament in developing an area of the common law? September 2013 Fellowship Examination All Souls College

7 LAW II Candidates should answer THREE questions 1. How legally significant is the European Union Charter of Fundamental Rights? 2. What practical consequences will follow from the EU becoming a party to the European Convention on Human Rights? 3. Should the Court of Justice of the European Union abandon collegiate judgments, allowing individual dissenting opinions? 4. Is the State ever justified in imposing coercive measures to pre-empt criminal activities? 5. Should the police power to stop and search be abolished? 6. Is there, or should there be, a right to security? 7. It has been suggested that the outcome of parole decisions can depend on how recently the adjudicator has eaten. What should we make of this? 8. Is judicial review anti-democratic? 9. Should proportionality be an independent ground of judicial review? 10. Positive discrimination is patronising (LORD SUMPTION). Is it? 11. What is the point of competition law? 12. Should references to foreign law be banned from arguments before, and judgments in, United Kingdom courts? 13. What is wrong, or right, about the law on rape? 14. What legal lessons might emerge from the Jimmy Savile inquiries? 15. Should corporations enjoy human rights protection? 16. Is the law on assisted suicide in need of reform? 17. How should the law of financial regulation be changed? 18. What have you learned from Roman law that you apply in English law? 19. What does sovereignty mean today? 20. When should English courts give effect to an unincorporated international treaty? 21. Can international organisations be held accountable in international law? [OVER]

8 22. Is international law undergoing a crisis of fragmentation? 23. Can national security be a matter of international law? 24. Do States have any international legal obligations with regard to those obliged to leave their own country because of climatic change? 25. Why did English law take so long to develop the theory and practice of stare decisis? September 2013 Fellowship Examination All Souls College

9 LAW I Candidates should answer THREE questions 1. Why are contractual obligations distinctive? 2. Are nominal damages the only remedy for a breach of contract which causes no loss? 3. Is the law on termination of contracts satisfactory? 4. In determining claims in tort against public authorities, are special principles necessary? 5. Does the law on causation now require legislative reform? 6. What impact has the European Convention on Human Rights had on tort law? 7. What principles underlie the law applicable to disputes concerning the beneficial ownership of family homes? 8. What is the nature of an equitable interest and why does it matter? 9. Should unjust enrichment law distinguish between cases in which the claimant does, and does not, participate in the defendant s enrichment? 10. Does the case-law support the proposition that proprietary rights arise from unjust enrichment? 11. Does the Brussels I Regulation adequately enforce agreements on jurisdiction? If not, what reforms are necessary to achieve this? 12. When should the judgments of foreign courts be recognised? Should they be enforced in the same circumstances? 13. Is the contract of employment a distinctive category of contract? 14. How adequate are existing legal remedies for breaches of individual employment law? 15. Should relevant evidence ever be excluded by law? 16. Are the human body or its components property? 17. How strong are the analogies between marital relationships, civil partnerships and contractual relationships? 18. The courts are courts of law, but they are also courts of justice. [LORD COLLINS, 2011]. Discuss. 19. What would be the advantages and disadvantages of a Common European Sales Law? [OVER]

10 20. Critically examine the law as to when debts and other choses in action are nonassignable. 21. What does it mean to say that a director of a company is a fiduciary in relation to that company? 22. Are the principles governing the lifting of the corporate veil satisfactory? 23. Should there be statutory reform to give consumers private law remedies for aggressive and misleading trade practices? September 2012 Fellowship Examination All Souls College

11 LAW II Candidates should answer THREE questions 1. The reach of equality law is delineated in different ways in different jurisdictions, but this depends on specific legal, historical and cultural factors, rather than on overriding principles [FREDMAN 2011]. Is this a fair assessment; and do the Equality Act 2010, the European Convention on Human Rights and the relevant provisions of EU law provide a coherent scheme of anti-discrimination law in England and Wales? 2. Legal theorists are engaged in a form either of cartography or of ideological warfare [HONORÉ 1973]. Is this a fair appraisal and, if so, are there implications? 3. Are states and corporations legal persons in the same sense as individuals are legal persons? 4. Is there a clear distinction between legitimate tax planning and tax avoidance? 5. Is William Blackstone s conception of crimes as public wrongs relevant today? 6. When is it constitutionally proper for a Court to disapply legislation? 7. Should States be able to claim extra-territorial jurisdiction? 8. [T]hough security is posited as a universal good, its pursuit tends to exclude those deemed as risks, erodes civil liberties, and corrodes trust [ZEDNER 2004]. Is this a fair assessment of the implications of a concern with security for contemporary law? 9. Is it possible to compare the laws of different countries without engaging in a broader comparison of their social, political and economic systems? 10. Law is often said to regulate a range of social systems and activities. What does this mean? 11. Does legal history matter? 12. Do dissenting judgments clarify or confuse the law? 13. Is competition law necessary? 14. To what extent has EU law resulted in convergence between national legal systems? 15. What makes law binding? 16. Has the proliferation of international tribunals affected the character of international law? 17. Is public international law a legal system? 18. How far should criminal law be invoked to protect private property rights? [OVER]

12 19. How far have national courts followed the jurisprudence of the European Court of Human Rights since the enactment of the Human Rights Act 2000? How far should they do so? 20. How far can environmental law be regarded as an autonomous body of doctrine? 21. To what extent has Roman law affected the development of English law? 22. What relevance has the ultra vires concept to contemporary administrative law? 23. Should attempts be treated as seriously as completed offences? September 2012 Fellowship Examination All Souls College

13 LAW I Candidates should answer THREE questions 1. I make no apology for referring to moral considerations. The law and morality are inextricably interwoven. (LORD STEYN in Smith New Court Ltd v Scrimgeour Vickers (Asset Management) Ltd (1997)). Discuss. 2. Has the Contracts (Rights of Third Parties) Act 1999 been a success? 3. Reliance damages are never awarded for breach of contract. Discuss. 4. Should pre-contractual negotiations be admissible evidence in construing a contract? 5. A claimant is free to choose between different causes of action. Discuss. 6. Is the law of tort best understood as a system for redressing the infringement by a defendant of the claimant s rights? 7. Why has the economic analysis of law had little impact on English courts in deciding cases in contract and tort? 8. B negligently damages an oil pipeline that is held on trust for A with the consequence that A loses profits that it would have made from using the pipeline. Does A have a claim in the tort of negligence against B for its lost profit? 9. What is tracing? 10. Is property best defined by reference to proprietary rights? 11. To what extent is a bona fide purchaser for value without notice protected in English law? 12. C drops a 50 bank note. D picks it up. Is D liable to C in unjust enrichment? 13. In the law of unjust enrichment, is the value of an enrichment the market value to a reasonable person in the defendant s position? 14. Are common law and equity fused? 15. Documentary letters of credit are autonomous. Discuss. 16. How does one decide which law governs restitutionary claims involving a foreign element? 17. Should the law on company charges be reformed? 18. Pre-nuptial and post-nuptial agreements ought to be binding contracts. Discuss. 19. Can the welfare of the child always be decisive in decisions about the child s future? [OVER]

14 20. Should procedural failings invalidate industrial action? 21. Does the Equality Act 2010 change anything? 22. Does the trend towards mediation undermine access to civil justice? 23. Is procedure more important in practice than substantive law? 24. Is every statute dependent on the common law? 25. Write a memorandum for the Law Commission on an area of law that needs reform with an outline of the possible options for reform. September 2011 Examination Fellowship All Souls College

15 LAW II Candidates should answer THREE questions 1. Does comparative law have any practical utility? 2. What role should be played by forgiveness in relation to the criminal law? 3. It is vital to measure crime accurately if we are to tackle it effectively [DAVID BLUNKETT MP, Home Secretary, July 2001]. Is it? 4. Is the English law relating to homicide now in a satisfactory state? 5. In what, if any, circumstances should limitation periods be applied to the prosectuion of crimes? 6. Is the English law on the admissibility of bad character evidence satisfactory? 7. Is the Government under a legal or moral duty to give effect to judgments of the European Court of Human Rights in cases brought against the United Kingdom? 8. To what extent may human rights be given up by contract? 9. How, if at all, should a religion be defined for legal purposes? 10. Is judicial review a procedure for the enforcement of individual rights or of standards of good governance? 11. Is there a proper role for anti-suit injunctions issued by one EU court in respect of proceedings in another? 12. In what circumstances should judicial determinations of the law have only prospective effect? 13. Was the Roman Law in relation to multiple damages the result of a failure to distinguish clearly between criminal law and civil law? 14. Was Slade s Case a watershed in the development of English contract law? 15. For an undertaking in a dominant position, what is the difference between anticompetitive and competitive conduct? 16. Is a clear definition of what amounts to income an indispensible foundation of every system of tax law? 17. What legal duties do States owe to individuals outside their territory? 18. Are all legal obligations equally binding? 19. Should all crimes under international law automatically constitute crimes under English law? [OVER]

16 20. Are the WTO rules on subsidies adequate? 21. Do Bilateral Investment Treaties strike the correct balance between the rights and interests of investors and the rights and interests of host States? 22. Is there a need for a new legal framework within which to fight the war on terrorism? 23. To what legal questions would the melting of the Arctic ice cap give rise? 24. Is consent to medical procedures given in a living will a satisfactoyr basis for the proection of patient autonomy? 25. It is an odd situation if the judges are making the law rather than Parliament [DAVID CAMERON MP, 2011]. Is it odd, and if it is what, if anything, should be done about it? September 2011 Examination Fellowship All Souls College

17 LAW I Candidates should answer THREE questions 1. How free should contracting parties be to determine the consequences of their failure to perform? 2. Why enforce unfair contract terms? 3. When should a public authority be liable to compensate those harmed by its poor administration? 4. Is there a tort of negligence? 5. What does tort law tell us about the common law approach to economic competition? 6. Can the situations in which a court will enforce informal commitments in relation to land be coherently explained? 7. When, why, and to whom should a recipient of trust assets be liable to restore their value? 8. Does the dichotomy between rights in rem and rights in personam adequately account for the trust? 9. In deciding whether a function is public for the purposes of the Human Rights Act 1998, there is no single test of universal application [LORD NICHOLLS]. Have the courts identified clear and helpful criteria in addressing this issue? 10. Should the Speaker control access to Parliament by the police? 11. Is proportionality a useful concept outside the spheres of administrative and EC law? 12. Should mass equal pay claims against local authorities be permitted? 13. Can the authority claimed by a government without the mandate of those governed ever be justified? 14. Is equality overrated? 15. Are crimes of omission difficult to justify? 16. Have governments been right not to pursue any of the proposals for reforming the structure of the English law of homicide made in the last fifty years? 17. Would it be better if the prison sentence announced by the court and the actual term served were the same? 18. Is universal jurisdiction of national courts in relation to war crimes and serious violations of human rights obligations a good thing? [OVER]

18 19. Is the Roman concept of furtum preferable to the English concept of theft? 20. As a result of standardisation agreements entered into under the aegis of industry bodies, access to certain privately owned intellectual property rights may be essential to enable undertakings to compete. How should competition law deal with such situations? 21. For an undertaking in a dominant position, what is the difference between conduct that will be deemed to be unlawfully anti-competitive and conduct that will be acceptable as competitive even though damaging to the undertaking s competitors? 22. Does the incidence of personal and/or proprietary restitution depend on whether or not a claimant transfers his rights to the defendant? 23. Does it matter whether a legal system orders restitution on the grounds of a present unjust factor or an absent legal basis? 24. What is the significance for private international law that a dispute arises between parties to a pre-existing relationship? 25. Should biology be given priority when a court decides with whom a child should live? 26. Should a tribunal be free to ignore expert evidence? September 2010 Examination Fellowship All Souls College

19 LAW II Candidates should answer THREE questions 1. All consensual obligations are contractual. Discuss. 2. [It is assumed] that we are all neighbours now, Pharisees and Samaritans alike, that foreseeability is a reflection of hindsight and that for every mischance in an accidentprone world someone solvent must be liable in damages [LORD TEMPLEMAN]. Should courts confirm or contradict the assumption? 3. As a matter of public international law, what legal consequences would arise from the insolvency of a State? 4. Can the concept of national security be regulated by law? 5. Does migration have anything to do with rights? 6. Should businesses have human rights? 7. To what extent, if any, should the Human Rights Act 1998 apply to the conduct of the military in time of war? 8. Should we be worried about the popularity of English courts among non-english defamation claimants? 9. Have English sentencing guidelines been a success? 10. What, if anything, is wrong with private sector involvement with policing and punishment? 11. Should the DNA records of those who have not been convicted of a crime be retained by the police? 12. Is a freedom to associate, without a liberty to strike, meaningless? 13. Can the situations in which the law requires unequal treatment of those in a protected group be justified? 14. Should the State support marriage as the cornerstone of a civilised society? 15. For which disputes, concerning which assets, does it make sense to defer to the law and/or courts of the situs? 16. What challenges does anonymous testimony pose for a fair trial? Can these adequately be surmounted? 17. Is it right that prosecutors should determine the effective ambit of the law on assisting suicide? [OVER]

20 18. How political should good legal philosophy be? 19. [T]he conferment of any legal protection or preference upon a particular substantive moral position on the ground only that it is espoused by the adherents of a particular faith, however long its tradition, however rich its culture, is deeply unprincipled [LAWS LJ]. Discuss. 20. Should control orders be abolished? 21. Can courts adequately scrutinize corporate governance? 22. What are the legitimate objectives of comparative law? Can these be attained? 23. What is a rational fining policy for competition authorities to adopt in respect of hard core infringements? September 2010 Examination Fellowship All Souls College