Conscience, discretion and the creation of property rights

This paper considers the utility of the concept of conscience or unconscionable conduct as a contemporary rationale for intervention in two principles applied where a person seeks to renege on an informal agreement relating to land: the principle in Rochefoucauld v Boustead; and transfers 'subject to' rights in favour of a claimant. By analysing the concept in light of our current understanding of the nature of judicial discretion and the use of general principles, it responds to arguments that unconscionability is too general a concept on which to base intervention. In doing so, it considers the nature of the discretion that is actually in issue when the court intervenes through conscience in these principles. However, the paper questions the use of constructive trusts as a response to unconscionability. It argues that there is a need, in limited circumstances, to separate the finding of unconscionability from the imposition of a constructive trust. In these limited circumstances, once unconscionability is found, the courts should have a discretion as to the remedy, modelled on that developed in the context of proprietary estoppel. The message underlying this paper is that many of the concerns expressed about unconscionability that have led to suggestions of alternative rationales for intervention can in fact be addressed whilst retaining an unconscionability analysis. Unconscionability remains a preferable rationale for intervention as it provides a common thread that links apparently separate principles and can assist our understanding of their scope.

Whatever works: proportionality as a constitutional doctrine

In The Global Model of Constitutional Rights Kai Möller claims that the proportionality test is underlain by an expansive moral right to autonomy. This putative right protects everything that advances one’s self-conception. It may of course be limited when balanced against other considerations such as the rights of others. But it always creates a duty on the state to justify the limitation. Möller further contends that the practice of proportionality can best be understood as protecting the right to autonomy. This review article summarizes the main tenets of Möller’s theory and criticizes them on two counts. First, it disputes the existence of a general right to autonomy; such a right places an unacceptably heavy burden on others. Second, it argues that we do not need to invoke a right to autonomy to explain and justify the main features of the practice of proportionality. Like other constitutional doctrines, proportionality is defensible, if it is grounded in pragmatic –mainly epistemic and institutional- considerations about how to increase overall rights compliance. These considerations are independent of any substantive theory of rights.

Analysis of disputed single-parent/child and sibling relationships using 16 STR loci

This study describes the validation of short tandem repeat (STR) systems for the resolution of cases of disputed parentage where only a single parent is available for testing or where the claimed relationship of both parents is in doubt and also cases where sibship must be tested. Three separate multiplex systems the Second Generation Multiplex, Powerplex 1.2 and FFFL have been employed, giving a total of 16 STR loci. Both empirical and theoretical approaches to the validation have been adopted. Appropriate equations have been derived to calculate likelihood ratios for different relationships, incorporating a correction for subpopulation effects. An F(ST) point estimate of 1% has been applied throughout. Empirically, 101 cases of alleged father, alleged mother and child where analysed using six SLP systems and also using the three multiplex STR systems. Of the 202 relationships tested, 197 were independently resolved by both systems, providing either clear evidence of non-parentage or strong support for the relationship.

Women, other "fresh” workers, and the new manufacturing workforce of interwar Britain

Structural, organizational, and technological changes in British industry during the interwar years led to a decline in skilled and physically demanding work, while there was a dramatic expansion in unskilled and semiskilled employment. Previous authors have noted that the new un/semiskilled jobs were generally filled by “fresh” workers recruited from outside the core manufacturing workforce, though there is considerable disagreement regarding the composition of this new workforce. This paper examines labour recruitment patterns and strategies using national data and case studies of eight rapidly expanding industrial centres. The new industrial workforce is shown to have been recruited from a “reserve army” of workers with the common features of relative cheapness, flexibility, and weak unionization. These included women, juveniles, local workers in poorly paid nonindustrial sectors, such as agriculture, and (where these other categories were in short supply) relatively young long-distance internal migrants from declining industrial areas.