Per Incuriam Michaelmas Edition 2022

MICHAELMAS 2022

FIRST CLASS TRIPOS ESSAYS

CAMBRIDGE UNIVERSITY LAW SOCIETY 2022

THE END OF ROE V WADE

UK MASTERS DEGREE HIGHLIGHTS

President's FOREWORD

Dear Readers, Happy new year to you all!

I hope you have had a well-deserved and restful break. I am delighted to welcome you to CULS’ Per Incuriam edition for Michaelmas 2022. I would like to say a huge congratulations and thank you to the Per Incuriam Editorial team of Editor in Chief Kimberley and Deputy Editors, Eleanor, Natalie and Claudia for all of their hard work and dedication throughout term (and their break) to bring together this edition of Per Incuriam. Thank you also to our creative officers Louisa and Connor for compiling this edition of Per Incuriam.

Per Incuriam has always served as an invaluable resource to students. The theme for this issue of Per Incuriam is ‘beyond the limit’. This includes articles on important topics such as the overturning of Roe v Wade and the French court’s decision regarding monopolies in the film industry.

Thank you to those who contributed these articles and also to those who submitted excellent exemplar essays from a range of different legal subjects for members to benefit from. I hope you are all as excited as I am for this issue.

Michaelmas term has been a fantastic term for CULS. We have excitedly introduced our Diversity & Inclusion department, which has already made its mark in CULS with fantastic events held this term. Our 121st Law Ball held at Madingley Hall was a night to remember and was full of celebrations as we finished what was an intense Michaelmas term. CULS hosted the first in-person foreign exchange since prepandemic. Our secretaries hosted an array of career, social, non-law, alumni and welfare events and initiatives. Our Mistress and Masters of the Moots also hosted an array of moots and workshops for members to get involved in congratulations to all who .

participated We had the pleasure of hosting Hugh Tomlinson KC, founding member of Matrix Chambers and barrister in the recent ‘Wagatha Christie’ trial, thanks to our speakers’ secretaries.

Plenty more is to come for Lent term as our departments have been working hard throughout the vacation to make sure that Lent term is packed with exciting events.

I would like to thank all our members for their continued support of CULS. I hope you enjoy this issue of Per Incuriam and enjoy the rest of the vacation!

Best wishes, Sophia Nie CULS President 2022-23

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Editor's

WELCOME

Dear Readers, An enthusiastic well done for getting through the term! For some it would have been your first taste of the academic demands of Cambridge, for others a first acquaintance juggling with an additional paper, and for those like myself an abrupt realisation this will soon come to an end so make the most of it! If you are feeling as though you’ve stretched yourselves thin, thankfully, we are afforded some breathing space before it all picks up again.

This sentiment ties into this edition’s theme of ‘over the limit’. Our Michaelmas Term contributors, Pallavi Jhunjhunwala and Juliette Millar, explore the demarcations established by recent legal developments relating to abortion rights and the French décret curbing monopolies in the film industry.

Pallavi explores the recent American Supreme Court’s divisive decision in Dobbs v Jackson, which restricted abortion rights. The article touches on the case history concerning abortion rights through a brief examination of Roe v Wade and Planned Parenthood v Casey, before exploring the arguments rationalising Dobbs. Pallavi notes that a change in the law is no panacea for the debate and concludes

by questioning our reliance on courts as the most appropriate means to protect essential rights. Juliette examines ‘Décret no.

2021-793 Realtif aux Services de Médias Audivisuels à la Demande’. The decision restricts the freedom of movie studios to stream their own content on their platform, and therefore, bypass cinemas.

Consequently, the decision dismantles the monopoly control over production, distribution and the exhibition of films. Juliette considers how the rise of streaming services has driven significant changes in the film industry while raising antitrust concerns.

Following an impressive round of applications, I extend a warm welcome to our new Freps: Antonia Molnar, Ewan Mahony and Pallavi Jhunjhunwala. We are pleased to have you on board and grateful for the contribution you will make to the team!

Continuing the series ‘Beyond Cambridge’, we have an insightful interview with Trinity College almunus, Ilsu Ari. Ilsu has recently completed an LLM in International Business Law at the LSE. Ilsu shares her experience of the application process, the course itself and her next steps on her way to the Bar. As usual, we have five outstanding tripos essays covering a range of optional

and core papers. Please do note that the essays were completed in the new fivehours open book examination format. They, nonetheless, continue to reflect the high standard of Cambridge students. Papers here include essays in Land, Criminal Law, EU Law, Legal History, and CSPS. I would like to thank Claudia, Natalie and Eleanor for their contribution to the publication. I am grateful to Louisa and Connor for their creative input. I would also like to thank our essay contributors and extend much appreciation to the Executive Committee for all their support.

If you would like to contribute to Per Incuriam, please email us at perinc@culs.org.uk. In addition to having your work published, we also reward some of our contributors with a small gift.

We are keen to read your ideas for articles, and our blog, so feel free to reach out with your pitch! We will also recruit our Lent Term contributors so do keep an eye out for the application.

With warm wishes for a restful holiday and a bright new year!

Kimberley Andrews Editor-in-Chief 2022-2023

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TABLE OF CONTENTS

02.

President's Foreword Sophia Nie

24.

Land Law Alexandra Breckenridge

03.

Editor's Welcome Kimberley Andrews

27.

Criminology, Sentencing and the Penal System Rebekah Brown

06.

UK Masters Degree Highlights Ilsu Erdem Ari

30.

Criminal Law Medhansh Kumar

32.

Legal History Michael Smith

09.

The End of Roe v Wade Pallavi Jhunjhunwala

14.

Streaming Services & the Future of the Film Industry.

Juliette Millar

19.

European Law Ellie Ripley

UK MASTERS DEGREE HIGHLIGHTS Ilsu Erdem Ari, BA (Hons) Law (Cantab), LLM in International Business Law (LSE) 1.

The Decision Application Process

and

Why did you decide to pursue a master’s degree?

My LLM at the LSE is a specialised one: it is an LLM in International Business Law. It allows one to gain a more indepth legal understanding of the international business world. The undergraduate studies at Cambridge were a stepping stone for me to specialise in areas of law that I studied more briefly, or did not necessarily explore in depth, so it was an opportunity for me to choose and exploit areas of interest that I didn't have time to look at in my undergraduate degree - such as commercial law and tax, as half of my courses were taxrelated.

What led you to pursue a master’s degree in the UK rather than abroad?

I did consider pursuing it in other parts of the world as I do speak other languages, so I thought “why not do a Masters in France?”. However, my decision was eventually linked to my career aspirations as I have always wanted to become a barrister in the UK so it was more logical for me to gain more specialised knowledge in the UK to use this knowledge in practice. The UK has always been big on commercial law. After all, it is no surprise that all the major banks and law firms have their headquarters or offices in London, which is the beating heart of the world economy.

What led you to choose the LLM at the LSE over other master’s degree programmes?

It kind of all started when I fell in love with tax law during my undergrad because I chose tax

law and policy as my dissertation option during my third year. That's when I really studied tax in depth. While researching my master’s options, I discovered that LSE has an incredible tax team with experts in tax being qualified as barristers or have closely worked with public bodies, and I just wanted to jump into that pool of knowledge and absorb as much as possible.

What is it about tax law that interests you the most?

I feel like I have a very mathematical mind. Whenever I read a statue, it is almost like analysing an algorithm in mathematics, and I really like the logical progression or logical pattern in things. That is why although I like studying

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Human Rights or Criminal law, for me, those subjects were more about human judgement and a bit more emotional. Tax is right at the opposite end: it is quite mechanical, it is almost a “if this, then that” condition-based process, and that is what I found most satisfying. I also found satisfying the fact that there is so much detail in that a single number or provision can change your whole tax calculation, or introduce an exception to your calculation, and looking at it from a legal perspective, I found that very interesting.

How did the application process for the LLM differ from the application process to the Cambridge undergraduate degree?

It was quite different from an administrative standpoint. With the undergraduate degree you apply via UCAS, which I did as an international student applying from France. However, I would like to highlight two main differences which are very important points for people applying as an undergrad. The first is that the LLM applications do not usually involve interviews of candidates (at least those that I have seen online). This means that the process is usually reduced to the application itself which means that students need to make sure their applications are not only polished but that the written application is enough to distinguish themselves from other students because I know some students, especially people who are interested in mooting like me, shine in oral proceedings or interviews, but they need to ensure their written application is also on point.

The second point is that as LLM applications

are usually specific to the institution, and not centralised through UCAS, LLM applications may not be coordinated. This means that they may not only have different application deadlines, but they also have different acceptance deadlines. This itself can present a particular challenge if you have a sort of ranking in your mind and it happens that the acceptance deadline for your second favourite choice is before your first choice even responds to you. You are then confronted with a decision between waiting for the response to lapse, and risking it for your first choice, or accepting the second option and just doing away with the first one altogether - this is something that students must consider!

For my part, I had an answer for another LLM application before my LSE offer and I let it lapse for the benefit of the LSE offer. I’m glad it all worked out in the end! In summary, I recommend students have a ranking in mind, decide if they are ready to be flexible in terms of which they really desire, or not, and be conscious of the choice they will make.

2. The Experience What were the main differences between studying a master’s degree in law compared to an undergraduate law degree?

I recently had this discussion with friends. We realised the main difference is that in the LLM you are accountable to yourself: you are responsible for completing your work,

organising your own work schedule, for attending class, and preparing for your exams. During an undergraduate degree you learn how to think and write like a lawyer and handle your workload. In a postgraduate degree you must do all of this yourself.

In comparison to Cambridge, the work is not paced by weekly supervisions; what I had was one class per week per subject and I had to prepare for it on my own as we did not have any lectures, whether online or inperson, to prepare for that in the first place. We just had the reading list, we had deadlines in terms of one formative per subject, we didn’t have anything else to pace things out or schedule. Some of the subjects had pre-recorded online lectures, but not all of them - most of it was independent study. This format of studying does provide students with some flexibility: if you know that you are more productive at a certain point in the day then you are granted that flexibility.

What did you find most challenging about the LLM? My first point is linked to my previous one. As there is no structure imposed on you, you do have to have your own weekly goals or deadlines. I do remember creating schedules that would include my activities for two months in advance, which included making time for my other commitments (minipupillages, interviews, moots), and I usually divided my workday by hours to know what to do next. Second, in the LSE LLM specifically, there are no mid-term exams. You have a total of eight subjects throughout the year (one being a dissertation), and ideally

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you would have an equal amount of subjects for each term. As exams are held at the end of the year, you have to make sure to take adequate notes and review them as you go along to be able to remember what you studied way back in Michaelmas Term. You have to find the motivation to do this throughout the year.

How does the intensity of the LLM compare to the Cambridge undergraduate law degree?

I would say the intensity is the same. As the LLM provides you with flexibility you have the scope to make the LLM as complicated as you want it to be for yourself, so it is up to you to decide where you want to put your emphasis on the topics, how you select topics for exam, how much to read and the degree of detail you want to go in. I wanted to go into a lot of detail, so I just implemented my Cambridge mindset.

How did non-academic activities (sports, extracurriculars, social life) during your time doing the LLM compare to your time at Cambridge?

One thing that I do miss about Cambridge is the rowing because I was a cox for all three years at Cambridge. I do have the opportunity to attend the boat club dinners at Trinity, so I still feel part of the family, but it is difficult to row in London because of logistics, preparation, and coordination in the teams, so I had to fill my time with other activities. I continued playing the piano and composing. I also actually took up salsa, attended a conference organised by the law society, and participated in

two moots, one of which had an unfamiliar format consisting of a team with a barrister and solicitor.

The other was sponsored by Atkin Chambers and I am very happy to say I won that moot and went on to complete a mini with Atkin Chambers.

Now that you have completed your LLM, how do you find the BTC (Bar Training Course)?

I took on the option of completing an LLM with my BVS at City Law School. It is going very well as I am discovering a completely different side to the law which is mostly the procedural aspects: civil claims, how to write claim forms, limitation periods, alternative dispute resolution and also the criminal litigation side of things. We are doing quite a bit of advocacy too: civil and criminal advocacy - criminal advocacy involves crossexamination, which I find fascinating.

operate to insulate risk and turn illiquid assets into highly liquid notes. But in terms of skills, I would say various time management capabilities and also my ability to handle very intense periods of studies and stay focussed for a long time, especially since our exams were closed-book as opposed to the 24h open-book ones I had in my last two years at Cambridge.

How did your expectations applying for and going into the LLM hold up to your experiences? Is there anything you wish you had known when applying/deciding whether to apply?

I had a much better experience than I thought I would. My expectations were exceeded, and I am still in touch with my professors as I had an opportunity to do some tax research assistance for one of them. To end on a positive note, the only thing I wish I had known before is how quick time went by and I wouldn't mind going back and doing it all over again.

3. The Takeaways What skills do you think you have acquired or developed during your time on the LLM? Specialised knowledge especially tax. I have had a course on banking law, and international financial law. I was very passionate about it as I watched ‘The Big Short’ which focussed on the 2008 credit crisis, and they were speaking about all these esoteric topics, and the course really allowed me to put this on a legal footing and understand how, for instance, special purpose vehicles

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THE END OF ROE V WADE Pallavi Jhunjhunwala Introduction June 24th, 2022 was a calamitous date for women in the United States of America as its Supreme Court issued the most divisive decision in decades in Dobbs v. Jackson Women’s Health Organisation[1]. It was a devastating blow to abortion rights and the first time in history that the court stripped away a fundamental right. In 2019, there were 630,000 abortions in the USA. About one in six pregnancies led to abortion and over 90% occurred in the first trimester[2]. The ruling may change the law, but it will certainly not settle the arguments over abortion.

This piece first will lay down the context of the ruling and proceed to outline the justification of the decision and the various arguments in relation to it. It will also include a section on the wider impact on international law and the UK. Despite the various political

aspects of this case, this piece will constrain itself to the constitutional law analysis of the judgement.

Background: Roe, Casey and the Mississippi law In Roe v Wade[3], the Court ruled that a woman’s right to terminate her pregnancy without government interference was protected as a right to privacy under the Fourteenth Amendment[4] of the US constitution.

The “substantive due process” doctrine maintains that the due process clause in the Fourteenth Amendment does not just cover fair democratic process rules but goes much to introduce further fundamental freedoms which the state cannot interfere with. A three part framework was born. The right to abortion being strongest in the first trimester, when the state may not regulate abortion at all. In the

second trimester, the state may regulate abortion in a way that “reasonably relates to preserving and protecting maternal health”[5]. Postviability, the state may regulate or even prescribe abortion except in the case to preserve the life or health of the mother.

The case was reversed in Planned Parenthood vs Casey[6]. It removed the trimester framework and replaced the “strict scrutiny standard” in Roe with the “undue burden” standard.

Under Casey, a state regulation would be an undue burden if it “has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable foetus.” It affirmed that precedent required adherence to Roe’s decision, that a State may not secure

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foetal life pre-viability, even if it was incorrect to the constitution.

In essence, the Casey case, instead of declaring that “all” state involvement in the first trimester was unconstitutional, granted the State to persuade pregnant women to continue their pregnancy owing to the State’s concern in protecting unborn life “to some extent”.

Roe encouraged the pro-life crusade and since then, there have been many attempts to drive it to its limits[7]. Despite Roe and Casey, States continued to erect significant barriers to reproductive autonomy. They gambled on the chance that there were adequate votes on the Supreme Court to overturn Roe given the 6-3 conservative majority in the Supreme Court.

An example of such an attempt by the states is the 2019 foetal heartbeat bans.

A foetal heartbeat can be measured as soon as six weeks after a woman’s last menstrual cycle, which is often before she even is aware of her pregnancy.

Moreover, there were Targeted Regulation of Abortion Providers (TRAP) laws , which effectively shut down abortion providers by imposing hefty burdens and regulations.

These reflect “abortion exceptionalism”: the tendency of the government to subject abortion to unique and more difficult rules[8].

There were other indirect ways to restrict abortion such as “conscience laws” which enabled particular healthcare providers to refuse the service. At the federal level, there was the Hyde Amendment, which disallowed the utilisation of federal funds for abortion except in case of rape, incest or endangerment of the health of the pregnant person.

The Mississippi statute - The Gestational Age Act[9]- was the case in question in the Dobbs action. This banned abortion at 15 weeks of gestation[10] with no exceptions for rape or incest. It conflicted with Roe v Wade, which prohibits such bans before the viability line. The court limited itself to the question: “Whether all pre-viability prohibitions on elective abortions are unconstitutional”[11].

Effect within the USA In the USA, all states authorize abortion to save the life of the mother, while some provide exceptions to their ban on abortion in cases of rape or incest.

Post-Dobbs, thirteen states had so-called “trigger laws” which came into effect after the overruling. Other states had old laws on the books which banned abortion before the 1973 Roe v Wade ruling, which could now be back in force.

After the ruling, many states introduced new bans but these were briefly blocked by courts and this has set the stage for a further legal battle.

Post-Dobbs, States are now free to enact even more restrictive laws on abortion. Indeed, the abortion landscape has now grown into a disorganized patchwork. While some states like New Mexico look to have a secure fundamental right owing to their state’s constitutional law, in other states such as Montana, opponents are endeavouring to overturn a state high court decision covering abortion rights. In states like Alabama, all abortions are banned.

Significantly, states such as

Texas and Missouri are finding ways to go one step further in commanding access to abortions by the means of administering their state rules extraterritorially.

This means they can potentially criminalise abortion operated by a medical practitioner on a patient from their state no matter where they are.

While the ruling will hold deep upshots for all people, it will affect people with disabilities and other marginalised groups disproportionately[12]. In their paper, Allison Whelan and Michelle Goodwin take an intersectional point of view as they discuss how even though race, sex and class discussions are made in the reproductive discourse, physical disabilities are still rarely brought up. And even when they are, it is with respect to foetal defects rather than pregnant persons with disabilities.

Abortion opponents often leverage the divisions between reproductive rights activists and disability activists by saying that abortions based on foetal disability are the “height of prejudice”. As Kendall Ciesemier asserts, “[a]bortion opponents like to use disabled foetuses as pawns to support their politics'[13].

A study by Time magazine found the far -reaching impact the Dobbs’ outcome has had on dating in the USA, with 13% of active daters saying overturning Roe has made them more hesitant to date and two out of three women refusing to date partners with opposing views on abortion[14]. This appears to be part of a larger trend of social consciousness within the USA similar to that which emerged in 2015 in the USA when Donald Trump announced he was running 10 for president.

Rationalization of Dobbs The majority’s reasoning was premised on their rendition of America’s constitutional record.

They held that “constitutional analysis must begin with the language of the instrument which offers a fixed standard for ascertaining what our founding document means”.

In the majority, Justice Alito noted, for a right to be saved by the constitution, it must be explicitly articulated in the text or “deeply rooted in [our] history and tradition”. In this way, they endorsed a radical adaptation of the originalist scheme of interpretation of the constitution, taking that courts should not act as if they are trying to apply the provisions to modern times. This is premised on the idea that it is undemocratic for an unelected judiciary to devise law out of thin air and accordingly courts must confine themselves to deducing precepts from the text of the Constitution itself.

The glaring counter to this position is that the court ignored the history post-ratification of the Fourteenth Amendment and so circumscribed itself to only those rights that were recognized in the earliest times of the country.

That was a time before when women and people of colour could vote, control earnings, and own property. Many bestowed rights today are not explicitly mentioned in the constitution[15].

When this case is read in conjunction with the judgement in New York State Rifle and Pistol Association v Bruen[16], which defined the pertinent “historical tradition” of gun regulation to the day of Second Amendment’s ratification, it is clear that Dobbs is not an aberration with regard to the emerging trend of the originalist

creading of the constitution in the USA. An alternative but convincing counter view is one suggested

by Laura Dewey who argues that the originalist argument ignores the fact that abortion was actually legal during colonial times and in the early history, provided it was performed before “quickening”, i.e when the baby’s movements could be felt in the womb. She also argues that one can’t get more “deeply rooted” than the Magna Carta, which prescribes the right to assert control over one’s body and informs the Constitution[17].

Moreover, as a society today we are equipped with more information than the authors of the Constitution. Whole Woman’s Health v Hellerstedt[18] stressed on the significance of taking into account data when reviewing abortion restrictions. Diane Green Foster conducted the Turnaway Study, the outcome of which showed that people really know what is best for themselves and that their decisions are not mere guesses or theories. She argues that one of the primary purposes of such scientific tools is to help understand the nature, cause and solution to such human problems thereby should not be divorced by the court.

Hence, she emphasises the need for courts to adhere to precedent and insists that constitutional rights be guided by evidence, not by ideology[19].

Justice Alito draws the line between the other unenumerated rights recognized in past decisions

under the Fourteenth Amendment- such as matters relating to sexual relations, contraception, and marriage- and abortion. He says the latter fails to objectively fit under the Amendment clause as it destroys an “unborn human being”[20].

Hence, he states that the court lacks any intention to question the other recognized rights. However, the earlier mentioned originalist reasoning of the court that abortion is not deeply rooted in the constitution does appear to apply to these other unenumerated rights, thereby threatening them too. Indeed, it is tough to trust the words of assurance from judges who outlined their respect for Roe as settled law at the time of their confirmation hearings in the Senate.

The fear is corroborated by Justice Clarence Thomas’ observation in his concurring opinion in the decision, “In future cases, we should reconsider all of this court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.

Because any substantive due process decision is erroneous.”[21].

Although this remark is troubling, it can be conceded that it is at the least honest in delineating that the grounds on which it capsized Roe has the potential to menace other unenumerated rights unlike Justice Alito’s explicit refusal of the decision’s impact on the unenumerated rights.

Some of the harshest comments made by Justice Alito were that Roe wielded “raw judicial power” and in effect wrested the authority to address a moral and charged question that the constitution leaves for the people.

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He insisted that the Roe and Cassey judgements weren’t making assertions in principle but forming improper policy judgments, which is the mandate of the legislature following the doctrine of separation of powers.

This reflects the uneasiness of where to mark the line and when to decide that a particular question involves a moral question which ought to be left for the legislators to agree upon.

Clarifying this question is key to other both enduring and future unenumerated rights[22]. The opinion pointed to a strong presumption of validity of a law enacted by the legislature, saying that if there is a “rational basis” for it to serve legitimate state interests, it shall be sustained.

Justice Alito’s denunciation of Roe was not just limited to the decision but also its evaluation of its impact on future generations. He charged Roe of inflaming a national issue and cited Ruth Bader Ginsburg’s comment that “a more constrained Roe” would have diminished rather than fuel controversy. To detail her acknowledgement, she thought Roe could have been better protected from attacks if it was spoken to be a right under the Equal Protection Clause of the Fourteenth Amendment instead. In effect, “if you impose restraints that impede her choice, you are disadvantaging her because of her sex”[23]. Justice Alito addressed this opinion that abortion cannot be classified as a sex-based activity therefore the “heightened scrutiny” that applies to such classifications is not relevant here. In saying this, he suggested that abortion is not discriminatory against women in particular.

Interestingly, Julie Rikelman, who argued the case for the Center for Reproductive rights, appeared to be cycling between reasoning

abortion rights off Roe’s privacy rationale, on Casey’s liberty interests, and on Ginsburg’s egalitarian interpretation of the Fourteenth amendment.

Although she endeavoured to portray these arguments as mutually enforcing, Justice Alito found them to be “fundamentally ad hoc and incomplete”[24].

Ramifications on International Law Dobbs’ move against abortion rights falls against the overwhelming global trend of liberalising abortion. Since 1994, 60 countries have refined abortion laws to make them more progressive. While some have been steady in doing so – such as moving from outright bans to qualified restrictions, such as in case of the threat posed to life, cases of rape or forced marriage or based on a socio-economic criterion. Indeed, Roe was named around the globe and aided in liberalising the right to abortion.

USA’s decision may perform a leading role in the field as Jedidah Maina identified, “when the U.S. sneezes, the rest of the countries catch a cold”[25].

However, others suggest the overturning of Roe will have limited impact in the global arena. Rather, the decision would behave as a stark outlier in the field of reproductive rights.

The decision may even fortify action and popular movements for further abortion liberalisation around the world[26].

Importantly, there was an amicus brief filed by the United Nations that the USA is subject to the International Covenant on

Civil and Political Rights and the Convention Against Torture[27] owing to its ratification of it as well as a signatory to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)[28].

The majority opinion in the decision failed to acknowledge these obligations, which set standards under international human rights law to preserve abortion access as a component of the right to equality, privacy, and life.

Concluding remarks One may think that in the UK, we are free and above such events, but as David Locke rightly argues, we would be misguided[29]. Here too every debate is regularly characterised by polarised extremes and descends into combative rhetoric.

An illustration would be the Police, Crime and Sentencing Act 2022[30], wherein it is clear that the majority of the people proclaiming against the law were not educated about its provisions.

Indeed, one may say we are rather close to a scenario where activists are empowered to influence judgements not by legal reason but by threats and protests.

With Dobbs, the Supreme Court threw out half a century of precedent, leading many states to ban and further restrict access to abortion. Even though it is still legal in some states and hence theoretically accessible, it is practically only so for persons and pregnant capable women who have the resources, means and support to travel. Further, the sequence of events raises the question as to whether the propensity to rely on courts to

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protect abortion access is the most appropriate means to protect such an essential right.

1.Dobbs, State Health Officer of the Ministry Department Of Health, et al. v.

Jackson Women's Health Organization et al., [2022] No. 19-1392, 597 U.S., [2022] WL 2276808

2.Statista Research Department, ‘Abortion in the U.S. - Statistics & Facts' (Statista, 14 November, 2022) <https://www.statista.com/topics/3218/ab ortion-in-the-us/#topicOverview> accessed 28 Nov 2022 3Roe v. Wade, [1973] 410 U.S. 113, [1973] 93 S. Ct. 705 4.Fourteenth Amendment, US Constitution 1868 5.[2022] No. 19-1392 at 163 6. Planned Parenthood v. Casey, [1992] 505 U.S. 833, [1992] 112 S. Ct. 2791 7.Sarah Smith, “Roe v Wade: Why This Is a Seismic Day in America.” (BBC News, BBC, 24 June 2022) <www.bbc.co.uk/news/world-us-canada61929438> accessed 28 Nov, 2022 8.Diane Greene Foster, “The Court is Ignoring Science” (Science, 16 May 2022) <https://www-scienceorg.ezp.lib.cam.ac.uk/doi/10.1126/science.ad c9968> accessed 14 Dec 2022 9. Mississippi Gestational Age Act 2018 10. “Gestation” means the time that has elapsed since the first day of the woman’s last menstrual period ( section (3)(e) Mississippi Gestational Age Act 2018) 11.[2022] No. 19-1392 at 8 12. Robin Powell, “Achieving Disability Justice After Dobbs” (OHRH, 3 August 2022) <https://ohrh.law.ox.ac.uk/achievingdisability-justice-after-dobbs/> accessed 28 Nov, 2022 13. Kendall Ciesemer, “Leave My Disability Out of Your Anti-Abortion Propaganda” (The New York Times, 31 July 2022) <https://www.nytimes.com/2022/07/31/op inion/disability-rights-anti-abortion.html> accessed 14 Dec 2022 14. Cady Lang, ‘How Dating Changed After End Of Roe v Wade’ (Time, 16 Nov 2022) <https://time.com/6234430/datingafter-roe-v-wade/> accessed 7 Dec 2022

15.League of Women Voters, “Explaining SCOTUS's Abortion Decision in Dobbs v.

Jackson Women's Health Organization” (LWV, 22 July, 2022) <https://www.lwv.org/blog/explainingscotuss-abortion-decision-dobbs-v-jacksonwomens-health-organization> accessed 28 Nov 2022 16. New York State Rifle & Pistol Association, Inc., et al. v. Kevin P. Bruen, in His Official Capacity as Superintendent of New York State Police, et al., [2022] 597 U.S. 20-843, [2022] 142 S.Ct. 2111

17. Laura Dewey, “The Death Of Abortion Rights Signals a Threat to Democracy” (2022) Vol 82 (2) Peace and Freedom <https://go-galecom.ezp.lib.cam.ac.uk/ps/i.do? p=AONE&u=cambuni&id=GALE%7CA7 24167899&v=2.1&it=r> accessed 14 Dec 2022

26. Risa Kaufman, Rebecca Brown, Catalina Martínez Coral, Jihan Jacob, Martin Onyango & Katrine Thomason (2022) “Global impacts of Dobbs v.

Jackson Women’s Health Organization and abortion regression in the United States, Sexual and Reproductive Health Matters” 30:1 <https://www.tandfonline.com/doi/full/10.1 080/26410397.2022.2135574> accessed 28 Nov 2022

27. International Covenant on Civil and Political Rights and the Convention Against Torture 1966 28. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 1979 29. David Locke, ‘Roe v Wade: Judicial insurrection?’ (2022) New Law Journal 30. Police, Crime, Sentencing and Courts Act 2022

18. Whole Woman's Health v. Hellerstedt, [2016] 579 U.S. 582, 136 S.Ct. 2292 19. Supra note 8 20. Supra note 9 21. Nora Delaney, “Roe v. Wade has been overturned. What does that mean for America?” (Harvard Kennedy School, 28, June, 2022) <https://www.hks.harvard.edu/facultyresearch/policy-topics/fairness-justice/roev-wade-has-been-overturned-what-doesmean> accessed 28 Nov, 2022 22.Aalon Blake, ‘The Supreme Court’s draft opinion on overturning Roe v. Wade, annotated’ (The Washington Post, 3 May 2022) <https://www.washingtonpost.com/politics /interactive/2022/dobbs-alito-draftannotated/?itid=lk_inline_enhancedtemplate> accessed 7 Dec 2022 23. Supra note 8 24. Michael Brendan Dougherty, “The Modest Burden Of Life: Progressives understand parental duty, but can they see it in the first nine months?” (2022) Accessed 14 Dec 2022 25. Sandhya Raman, ‘At international conference, Dobbs dominates debate’ (Roll Call, 7 Dec 2022) <https://rollcall.com/2022/12/07/atinternational-conference-dobbs-dominatesdebate/> accessed 7 dec 2022

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Juliette Millar

Streaming Services & the Future of the Film Industry.

The Impact of the 23rd June 2021 “Décret n° 2021-793 Relatif aux Services de Médias Audiovisuels à la Demande” on Streaming Services and the Future of the Film Industry.

I. Introduction In this article, I examine the how the rise of streaming services has driven major change within the film industry and raises pressing antitrust concerns. In order to curb the growing power of the studios over all aspects of film distribution, the French government has implemented Decree No.2021-793 and Ordinance No.2020-1642 the former taxing profits from movies released on streaming services 20%-25% and the latter laying out strict “windowing” practices (the length of time between theatrical and streaming release). This attempt to regulate Hollywood has an important American precedent in the Paramount Decree. This decree broke up the monopolies which had formed because studios controlled the production, distribution, and exhibition of films. When the Paramount

Decree and the importance of the concept of “exception culturelle” to French media production is considered, it becomes clear that the current antitrust safe-guards are outdated and out-of-step with the current media landscape which is increasingly dominated by streaming.

These ineffective measures have resulted in Hollywood’s continued dominance over the French film industry.

Compounded by the Covid lockdowns, the shift to streaming has rapidly accelerated. Ultimately, the French regulations (Decree No.2021-793, Ordinance No.2020-1642, and the “Media Chronology” Agreement) attempt to address a legitimate problem but are no match for Hollywood power and money. The film industry, by virtue of its modernization through streaming platforms,

has been allowed to flourish without effective opposition by either American or international regulatory bodies and has circumvented longstanding (and now outdated) US antitrust legislation.

II. The Evolution of the Film Industry and the Shift to Streaming Netflix, Disney+, Hulu, HBO Max, Peacock, Paramount Plus, Amazon Prime, Apple TV+ – the list of streaming services now available has reached epic proportions. The switch from bundles of TV stations to bundles of streaming platforms is complete (if you live in the US, you can now bundle Hulu, Disney+, and ESPN+ for $13.99). Although the move to video on demand started with platforms not associated 14 with a

studio (Netflix and Hulu, for example), increasingly,the studios themselves have created their own platforms to maximize their own libraries of movies and TV shows. For example, in 2021, NBCUniversal (NBCU) pulled The Office from Netflix with a $500 million deal to put it onto its own newly launched streaming service, Peacock. By having a popular show on its platform, NBCU would be able to grow the appeal of a service which might otherwise run the risk of appearing obsolete. As a consequence of the pandemic, movie theatre attendance has reached an all-time low.

Although it is perhaps too soon to predict with certainty that this will be a continuing trend, it is nevertheless clear that the period of Covid lockdowns has expediated a process that had already begun: the switch to direct-to-streaming. Studios such as Disney and Warner Bros. simultaneously released movies in movie theatres and on their streaming platforms (Disney+ and HBO Max) rather than maintaining the cinemas’ exclusive window.

For WarnerMedia (Warner Bros.’ parent company), this resulted in huge backlash from Dune director Denis Villeneuve and Tenet director Christopher Nolan who essentially allegedly breach of contract because simultaneous release to streaming caused their movies to underperform at the box office, which in turn impacted their expected earnings.

The web of relationships between studios, streaming platforms, and creative professionals in the industry is undoubtedly complex.

Nevertheless, it is clear that the industry trend, promoted by the major studios, is a move to simultaneous release in cinemas and on streaming platforms. In

fact, in many cases, studios will skip cinema releases altogether in favour of placing movies immediately on their own streaming platforms. This move not only promotes the platform but also minimizes promotional and marketing costs associated with launching a new title. Furthermore, this highlights the growing scarcity of third-party distributors. As highlighted by K. L. Race, who argues that “the studios have not indicated the reasons why they must control distribution channels…they have not proffered a coherent argument stating why distribution could not be left to independent third-party vendors, particularly given the history of antitrust violations in the movie industry.” With the increase in direct-to-streaming releases comes a decrease in competition and a rise in the monopoly power of the major studios.

III. The French Government’s Efforts to Control the Industry The French government, in an effort to curb the negative impact of this change on movie theatres, passed Decree No. 2021-793 in 2021 which aimed to control the video on demand release window, strengthening Ordinance No. 2020-1642. Decree No. 2021793 implements for foreign streaming platforms the same rules which have long applied to French services. Namely, video on demand services must contribute 20% of their profit in France “au financement de la production d’œuvres cinématographiques et audiovisuelles européennes ou d’expression originale française” (to finance the production of European

cinematic or audio-visual works or of original French expression).

This is increased to 25% when the movies on the video on demand platforms are less than a year old.

This decree came into force on the 1st of July 2021. Clearly, this decree is seeking to limit and control the power of streaming services, specifically those owned by studios (such as Disney+).

Furthermore, another regulation, known as the “Media Chronology” Agreement (signed on the 24th of January 2022), puts a strict time delay between the cinematic and streaming release of films. This windowing system is based on how much money each service contributes to the financing of French cinematic production. For example, Netflix made a deal which lowered its window from 36 months to 15. Disney, however, refused to sign a similar agreement and threatened to withhold Black Panther: Wakanda Forever.

Eventually, Disney agreed to release Black Panther in French cinemas, but has threatened that its major 2023 blockbusters will go straight onto Disney+ unless a less onerous agreement is reached. Although the goal of these French regulations was to control and curb the power of large studios and their streaming platforms, it has had the opposite effect and accelerated the industry’s push away from cinematic release because they have created a situation in which it more lucrative for studios to either release direct to streaming or to create other content (such as TV shows) which do not have theatrical releases. The studios profit more from the content they release directly to their streaming services because they then do not have to pay a windowing fee. The regulations simply disincentivize

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studios from releasing their movies theatrically because it is more cost effective for studios to avoid the windowing fee than it is to finance an expensive cinematic release only to pay more to put their movie on their streaming platforms. Clearly, these regulations were created to try and curb the influence of foreign studios on the French movie landscape. That these studios have accumulated tremendous power, both financial and cultural, is undeniable: they can unilaterally decide to release movies onto their streaming services (as seen in the case of HBO Max), add and remove content without warning, or acquire other companies (such as Disney’s 2019 acquisition of 21st Century Fox). Unlike other countries, the French government has put legal limits to restrain the studios, but these attempts have simply empowered them.

IV. The Paramount Decree and Its Continued Impact The only US legislative effort to curb the studios is the Paramount Decree [see United States v.

Paramount, 334 U.S. 131 (1948)].

In 1938, the Justice Department filed an antitrust lawsuit against eight studios alleging that they had conspired to control the industry “through their ownership of film distribution and exhibition.” This was a seismic shift in the industry and caused an economic restructuring. By preventing studios from owning movie theatres, the Paramount Decree stopped the growing monopoly power of these large motion picture companies.

France’s new regulations appear to be of a similar vein, but far less effective.

While the Paramount Decree had the desired effect (studios own very few movie theatres today),

the French regulations (Decree No. 2021-793, Ordinance No. 2020-1642, and the “Media Chronology” Agreement) have resulted in the threat of major blockbusters being withheld from the French market.

Before studios had their own streaming services, their content might be found on platforms not associated with a particular studio (such as Netflix): this could be considered closer to the model of distributing movies to theatres not owned by the studio. Now, however, with many studios placing their home-grown content onto their own, individual streaming platforms, we have effectively returned to a pre-Paramount Decree world. As Schéré notes, this consolidation of content into their individual studio’s streaming platform results in consumers being forced to pay for addition subscriptions: “The fear is that, in the end, consumers will be paying as much for SVOD as they are paying for Comcast or DirecTV.” Although no antitrust case has yet been initiated in the US against this practice, the attempt to regulate in France might spur closer investigation into this shift in the industry. As J. A. Schwartz argues: “the policies and arguments supporting the consent decrees that emerged from the 1948 Paramount decision have been severely weakened with the passing time…the Paramount Decrees appear obsolete given the realities of the film industry today.”

This calls for immediate re-evaluation of the antitrust regulation of the film industry in the United States.

V. The French Film Industry v. Hollywood

With this historical background in mind, a closer examination of the French regulations shows that they are an ineffective and shortsighted attempt to control the Hollywood entertainment giants.

By focusing purely on the funding of European and French-language productions, the regulations are incapable of curtailing the US studios and streaming platforms.

They do, however, underscore the “exception culturelle” of the French film industry which privileges the funding of French cinema through government quotas and tax breaks. By attempting to create financing for the production of French movies, the French government has in fact pushed the industry further away from cinematic release.

When the fact that studios make comparatively little money off cinematic release (while having to spend a huge amount on promotion) is considered, it becomes clear that these regulations make it even easier for studios to either release straight to streaming or to create content that needs no cinematic release. Why waste money on promotion, marketing, and contribution to the production of French films when they could simply avoid all these expenses by releasing their content on their own platforms? The “exception culturelle” is unique to France, thus creating a unique set of priorities when attempting to regulate the film industry. In addition, the focus on the “exception culturelle” could have the further effect of alienating potential European allies in the wider effort to mitigate the influence of the studios on the distribution and exhibition of their movies J. Buchsbaum explains the evolving concept of the “exception culturelle:” “As the highly public

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claims for the value of French cinema rested on its quality and diversity, the government pursued a wide array of measures to correct the sins of the market in the interest of the magic potion known domestically as ‘diversity,’ and internationally as ‘cultural diversity,’ a newly coined term that replaces the ‘exception culturelle.’”

He continues, arguing that this allowed French cinema to establish “itself as the most outspoken, and successful, antagonist to the hegemony of the United State free trade ideology.” Nevertheless, French cinema poses no real threat to Hollywood’s dominance of the global film market. Thus, any legislative effort to elevate the former above the latter inevitably results in effective control, because the power imbalance between the two is simply too pronounced.

VI. Conclusion The Covid lockdowns created a situation in which movie theatres were forced to close for an extended period of time, but significantly, once they reopened, patrons failed to return in prepandemic numbers. This signals the wider industry trend of the move to streaming and video on demand. Audiences seem to have fallen out of love with going to the movies. The expense of movie tickets has driven viewers to the ease of home entertainment. The pandemic appears to have put this terminal decline in movie going into hyper-drive. As L. Minassian argues: “In light of the events surrounding the COVID-19 pandemic, the role of streaming in the movie industry has only continued to increase to the detriment of theatrical exhibition.

However, the silver lining for theatres is that they will never by irrelevant so long as industry award eligibility – Oscars and Golden Globes – requires a period of theatrical exhibition.” Although it is clear that streaming services have accelerated the demise of theatrical exhibition, I would argue that Minassian lends too much weight to the impact of the industry award eligibility criteria. As can be seen in the example of Netflix movies up for awards consideration, it is easy for studios with enough money to work around this rule without actually investing in a traditional theatrical release period. As A. Marin notes, Netflix has circumvented this rule by a “four-walling screens” which “involves renting the screen at a flat fee and taking all the revenue raised from ticket purchases.” This means that Netflix “can qualify its films for Academy Awards if it exhibits in a single theatre in Los Angeles County for seven consecutive days before or on the same day the film begins streaming on its service.”

Although Academy criteria are unlikely to become looser in this regard (if anything it is more likely that in a bid to preserve cinematic releases the Academy makes the length of exhibition in a LA county movie theatre longer), nevertheless, the overall movement in the industry and within society in general is away from cinematic release.

The mergers of major entertainment companies (such as the Disney/Fox merger) have resulted in powerful media conglomerates with access to decades of content with which to entice

viewers to join their streaming platforms.

The French government’s attempt to regulate the streamers indicates that there is an awareness of the growing power of these platforms, but their approach has had no tangible success.

If other governments become involved, the United States in particular, perhaps more can be done to mitigate the unchecked power that the studios once again wield over the distribution of movies. In 1948, the Justice Department recognized the danger of studios owning their own movie theatres, because it allowed them to artificially inflate the price of admission as they saw fit (a practice known as “resale price maintenance”). Today, a similar problem has emerged because studios (through their streaming services) have regained control over a large proportion of the distribution and exhibition of their content. For example, Disney+ charges $29.99 (£19.99) for “Premier Access” to certain new releases (such as Mulan, Cruella, and Raya and the Last Dragon).

Theoretically cheaper than movie tickets for a whole family, Disney+’s Premier Access speaks to the wider danger of studios regaining a monopoly on the exhibition of their movies (and of them hiking up prices). France’s regulations do uncover a legitimate issue which ought to be addressed; however, the implementation of cultural production quotas has only obscured the problem, allowing the Hollywood heavyweights to continue their power grab unfettered.

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Bibliography

Abboud, L., & Barker, A. (2022, October 17). Disney Warns France that Future Blockbusters could Bypass Cinemas.

Subscribe to read | Financial Times.

Retrieved November 27, 2022, from https://www.ft.com/content/29fbbb2c7eef-4b6b-8c46-f05d395f55cf Brenan, M. (2022, June 23). Movie Theater Attendance Far Below Historical Norms.

Gallup.com. Retrieved November 27, 2022, from https://news.gallup.com/poll/388538/movi e-theater-attendance-far-below-historicalnorms.aspx Buchsbaum, J. (2006). “The Exception Culturelle Is Dead.” Long Live Cultural Diversity: French Cinema and the New Resistance. Framework: The Journal of Cinema and Media, 47(1), 5–21. http://www.jstor.org/stable/41552445 Cho, W. (2022, February 8). Warner Bros. Sued Over 'Matrix Resurrections' Day-and-Date HBO Max Release. The Hollywood Reporter. Retrieved November 27, 2022, from https://www.hollywoodreporter.com/busin ess/business-news/warner-bros-sued-overmatrix-resurrections-day-and-date-hbomax-release-1235088221/ Communiqués de Presse. Ministère de la culture. (n.d.). Retrieved November 27, 2022, from https://www.culture.gouv.fr/Presse/Comm uniques-de-presse The Disney Bundle with Hulu, Disney+, and ESPN+. Hulu. (n.d.). Retrieved November 27, 2022, from https://www.hulu.com/hulu-disney-espnbundle-offer Goldberg, L. (2019, July 9). 'The Office': Why NBCUniversal is Paying $500m to Pull the Hit from Netflix. The Hollywood Reporter. Retrieved November 27, 2022, from https://www.hollywoodreporter.com/tv/tvnews/office-why-nbcuniversal-is-paying500m- pull-hit-netflix-1221020/ Kuper, S. (2013, June 7). France's 'exception culturelle' makes more sense than ever. Subscribe to read | Financial Times. Retrieved November 27, 2022, from https://www.ft.com/content/5e661a12cf60-11e2-a050-00144feab7de

Minassian, L. (2022). After 70+ years, hollywood's major studios are allowed to leave "hotel california": why the district court was correct in terminating the paramount consent decrees. Loyola of Los Angeles Law Review, 55(4), 1167-1222.

The Paramount Decrees. The United States Department of Justice. (2020, August 7).

Retrieved November 27, 2022, from https://www.justice.gov/atr/paramountdecree-review.

Piquard, A., Dassonville, A., & Vulser, N. (2022, October 4). Le secteur de l'audiovisuel se déchire de Nouveau sur la chronologie des médias. Le Monde.fr.

Retrieved November 27, 2022, from https://www.lemonde.fr/economie/article/2 022/10/04/le-secteur-de-l- audiovisuel-sedechire-de-nouveau-sur-la-chronologie-desmedias_6144395_3234.html Race, K. L. (2003). The Future of Digital Movie Distribution on the Internet Antitrust Concerns with the Movielink and Movies.com Proposals. Rutgers Computer & Technology Law Journal, 29(1), 89-138.

Roux-Vaillard, S., & Grammont, M. (2022, May 30).

France new avms requirements and New Media Chronology - final acts of an unusual reform. France New AVMS requirements and new media chronology - Final acts - Hogan Lovells Engage. Retrieved December 9, 2022, from https://www.engage.hoganlovells.com/kno wledgeservices/news/france-newavmsrequirements-and-new-media-chronologyfinal-acts-of-an-unusual-reform/ Schéré, E. (2018). The trouble with mergers is. UCLA Entertainment Law Review, 25(1), 133-148.

Schwartz, J. A. (2019.) Bringing balance to the antitrust force: revising the paramount decrees for the modern motion picture market. UCLA Entertainment Law Review, 27(1), 45-110 Schwartz, M. S. (2019, March 20). Disney Officially Owns 21st Century fox. NPR. Retrieved November 27, 2022, from https://www.npr.org/2019/03/20/705009 029/disney-officiallyowns-21st-centuryfox.

Marin, A. (2021). "and the oscar goes to..": why the academy awards may create antitrust drama with proposed eligibility rule changes. Cardozo Law Review, 42(2), 645-684.

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Ellie Ripley Mark: 75 Q1, 2022 ‘…[T]he Court of Justice, on the one hand, is convinced in the utmost value of effectiveness of Union law and is expecting all national courts to share its fervour. On the other hand, national courts performing constitutional review tend to prioritise their respective constitutions.’ (BOBIĆ) (2020) Discuss the tension identified by Bobić and whether it suggests limits to the autonomy and primacy of EU law.

In this essay, I will argue that the CJEU generally does strive to preserve the effectiveness of Union law; this is in tension with national court rulings that state Union law cannot prevail over fundamental constitutional norms. However, I suggest that national courts do not always prioritise their constitutions, generally accepting the primacy of Union law. Moreover, the word “tension” misstates that

EUROPEAN LAW many of these instances are valid constitutional conflicts.

This simply reveals that whilst primacy and EU’s law autonomy are generally accepted, the EU is overall still an intergovernmental institution, where the overall hierarchy of the EU and national constitutions remains unresolved.

Tension between EU and national courts Firstly, it is correct to state that the EU courts strive in protecting the utmost value of the effectiveness of Union law, even if at the expense of national courts’ autonomy. This was echoed strongly in Costa, the court confirming the primacy principle. Motivated by the need to preserve the effectiveness of EU norms as special sources of law, the court directly prioritised the special EU norms, expecting national courts to give them priority. This was partly

justified on the notion that Union law was intended to create directly binding individual rights, raised in cases like Van Gend. The effectiveness of this aim would be undermined if EU law did not prevail, rendering these rights conditional. This has led to strong rulings, like in Handelgellschaft, where the court confirmed that primacy cannot be affected by allegations that the norms run counter to “the principles of a national constitutional structure”.

Moreover, this can be demonstrated in the recent PSPP judgment, where the BVerfG confirmed that national norms, including constitutional norms, would prevail if the EU law delivered an arbitrary interpretation.

Riedl suggests that this judgment was acceptable, simply suggesting that the constitutional courts have a 21 monopoly on the

interpretation of their constitutions. However, the notion of an arbitrary interpretation is broad, suggesting the national courts could prioritise their constitutions in many instances.

The CJEU Press Release demonstrates a potential tension, stating that the judgment could “place in jeopardy the unity of the EU legal order”. This was motivated by effectiveness, ensuring that there are no divergences in the protection of EU norms.

However, it is overall perhaps overstated to suggest all these disagreements are “tensions”. As Bobic convincingly identifies, constitutional conflicts are an “important feature” of the EU system. On this view, the CJEU is not always convinced in EU law’s utmost value, nor do national courts always prioritise their respective constitutions. One example is Taricco, leading to a development in the EU norm, following Italy’s attempts to protect its constitutional principles. This demonstrates that there is not always a binary tension; both courts engage in a dialogue to decide on the priority of their respective norms.

Nevertheless, I do accept that not all of these disagreements are constructive. For example, the Commission v Poland cases evidence a destructive conflict, between the effectiveness of judicial protection and Poland’s desire to protect the structure of its judiciary arising from its constitution. In these instances, there CJEU will firmly prioritise the effectiveness of EU law, where the national court is fervent in maintaining its constitution. Thus, the CJEU has continued to build on the rulings in Commission v Poland, requiring the judiciary to become

more independent.

This however simply links to the idea that such EU obligations were incurred voluntarily, including primacy.

The House of Lords recognised this in Factortame (No.2), recognising it was the duty of the national court to disapply conflicting national provisions, based on the overriding nature of EU law. The CJEU does expect national courts to comply with primacy, given this was accepted upon accession to the EU as a fundamental principle. Indeed, this was one of the justifications in Costa for the primacy principle, noting that EU obligations were those “undertaken under the Treaty” when States limited their sovereignty.

Similarly, for this reason, it is overstated to suggest that national courts always prioritise their respective constitutions when performing constitutional review. In the Lisbon Ratification, the BVerfG did identify a constitutional review, but stated that this would only occur if the “inviolable core content” of the German constitution were threatened. This is overall a very limited function, where EU norms will generally prevail over the national constitution unless this core is threatened. This builds on Frontini, where the Italian constitutional court accepted that EU law can derogate from “ordinary” rules of constitutional law. Thus, so long as the most fundamental constitutional principles remain uninfringed, national courts tend to prioritise the EU norms.

Relation to the autonomy and primacy of EU law I will now argue that the above discussion merely reflects that the EU is not yet fully autonomous, remaining an intergovernmental institution. This means there are inherent limitations on primacy, although they are not that important in practice.

On one hand, there are judgments which suggest that the EU is a fully autonomous supranational institution, perhaps explaining the CJEU’s rigour in enforcing the primacy principle over national constitutions. For example, in Van Gend, the court stated the EU is a “new legal order of international law” where States have “limited their sovereign rights”. However, whilst it is correct to accept that States have transferred some sovereign rights, this simply suggests that the EU has more power than ordinary international treaties, allowing for principles such as primacy. The Maastricht Treaty Ratification demonstrates however that the EU is still largely intergovernmental, “based upon authorisation by States which retain their sovereignty”. Although the EU is a new legal order, this is dependent on MS consent, allowing MS to validly invoke limitations to this autonomy. Thus the notion of an ultra vires review by the BVerfG simply reflected this conceptual limitation; the national courts must remain free in some instances to limit the effect of EU norms.

Consequently, there are necessarily limits to the primacy principle, resulting from its reliance on MS consent. De Witte convincingly makes this argument, suggesting that MS have not yet 22 accepted that primacy will prevail over national constitutions.

This is a valid argument, reflecting that the ultimate hierarchy of EU norms and national constitutions is not yet resolved, restricting the primacy principle. This inherent limitation is demonstrated by the fact that the primacy rule does not directly invalidate conflicting national norms. Thus even in strong rulings like Handelgellschaft, the Court still spoke of national courts “disapplying” their national constitutions, rather than these norms being invalidated. This allows national courts to perform constitutional review, so that these limitations are not eschewed.

albeit limitations that the national courts in practice give little weight to.

Whilst there are thus inherent limitations to primacy, this does not lead to the conclusion that the primacy of EU law does not generally prevail. As discussed above, part of the justifications for the CJEU’s stringent attitude is the democratic mandate of MS to join this new order, impliedly accepting primacy. The national courts are reticent in constitutional review for this reason, accepting the primacy of EU law in most instances. Thus in the Lisbon Ratification decision, the BVerfG accepted that the German constitution had an “openness” towards European integration, based on Germany’s autonomous decision to limit its sovereignty and join the EU. This suggests that whilst the overall hierarchy has not yet been resolved, in practice this constitutional mandate will allow primacy to prevail.

Conclusion Overall, there are occasions of tension between the CJEU’s desire to maintain the effectiveness of Union law and national court rulings which assert primacy,

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Alexandra Mark: 74 Breckenridge Q1, 2022 William and Grace were partners in a small accountancy firm. They decided to buy a property in which they could live and work during the coronavirus pandemic, but with an eye to long-term investment.

In the course of finding a suitable property, they fell in love and became a couple. The house they chose, Rosario, was registered in their joint names, without any declaration of trust, and they duly moved into, and started working from, Rosario in May 2020. William made a £5,000 contribution to the purchase price, with the balance of £495,000 provided by Grace, who had recently won a lottery prize. They did not discuss the disparity of their contributions. They split the cost of the outgoings equally.

In June 2020, William’s father died suddenly and the couple invited his widowed mother,

LAND LAW Zandra, to come and live with them. Zandra agreed, selling her own house in the process.

In July 2021, she moved in and also began conducting her business as a freelance tutor from Rosario. Conscious that her arrival had prompted William and Grace to upgrade their broadband connection, Zandra started to pay the broadband bill. Having also realised that Rosario was not designed for three people, Zandra paid for a significant extension, consisting of a larger living area, a second bathroom and a fourth study/bedroom. When Zandra asked William and Grace whether they would like her to do anything else, they said: ‘No, don’t worry. You’ve done enough. This is our house and we’re supposed to be doing you a favour.’

By December 2021, the relationships between William, Grace and Zandra had all deteriorated, and they realised

that they could not live together at Rosario anymore.

Zandra, who is now somewhat frail, wishes to continue living there. William and Grace (who are in the process of separating) are agreed that Rosario should be sold, but disagree as to the appropriate distribution of the sale proceeds.

Advise William, Grace and Zandra.

Position at Law Rosario was registered in William and Grace’s joint names in May 2020 without any express declaration of trust (had there been an express trust, this would have been determinative – Goodman v Gallant). It thus falls to be considered whether the beneficial entitlements in the property differ from the position at law.

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Initial Trust?

Resulting/Constructive

By the time William (W) and Grace (G) bought Rosario, they were a couple intending to cohabit the property – with a potential future view to develop it as an investment. W and G will be presumed to be joint tenants in both law and equity (Stack). However, in the absence of an express trust conclusive as to the beneficial entitlements, this presumption may be displaced and equitable entitlements calculated despite the lack of written evidence (LPA 1925, s.

53(2)) through an implied resulting or constructive trust.

Since this is a predominantly domestic case, it may appear that a resulting trust would be an inappropriate solution to calculate the beneficial entitlements (as was held by the Supreme Court by (the majority) in Stack and affirmed in Kernott.) However, the Privy Council’s decision in Marr raises some difficulties: in Marr the Board doubted the force of presumptions (be it of resulting trust or, in the domestic context, the presumption that ‘equity follows the law’), emphasising that the intentions of the parties should prevail. G might thus try to raise a resulting trust argument based on (1) the shared intention that the property should be used as a prospective investment and (2) her much greater contribution to the purchase price of Rosario. If successful in proving an RT, G and W would no longer hold as joint tenants in equity, but instead as tenants in common with W’s share significantly diminished.

However, although resulting trust analysis has been applied in

Tahir, the overall tenor of recent case law is to apply constructive trusts in cases involving family/domestic arrangements (and indeed as Kahrmann shows occasionally even in purely commercial cases).

If G cannot prove a resulting trust arises, she will raise a constructive trust argument.

Since this is a joint names case, the test at para [51] in Jones v Kernott can be applied to quantify W and G’s shares.

This test provides that the presumption of joint equitable ownership may be displaced by showing a common intention “deduced objectively from conduct”, having regard to para [69] factors of Lady Hale’s judgment in Stack.

Applied to the facts, although the costs of the “outgoings” were split evenly (per para [69]) the dramatically different financial contributions of the parties, coupled with the “nature of the parties’ relationship” as partially commercial, point in favour of an inference that the beneficial ownership of the property was not intended to be held jointly.

Once this intention has been objectively inferred, Jones confirmed (controversially) that the precise quantification of the parties’ beneficial interests may be imputed when it is “not possible to ascertain by direct evidence or by inference”. Thus, despite the fact that G and W did not discuss the “disparity of their contributions”, the court may award shares which it considers “fair having regard to the whole course of dealing” (per Chadwick LJ in Oxley v Hiscock).

Analogously to Barnes v Phillip (where an

85%-15% split was found based on differing contributions to a mortgage) the court is likely to impute a greater share in the property’s equity for G. Thus, prior to Z’s entry on the property, either through resulting or constructive trust, W and G were likely beneficial owners in a tenancy in common with G holding a greater share of the equity.

Constructive Trust for Z? Zandra (Z) was invited to live with W and G when W’s father died in June 2020. At this entry point, Z is a “lodger” who is entitled to live on the premises but “cannot call the place [her] own” (Street v Mountford, Lord Templeman). However, Z then begins to contribute to the household/ business expenses and pays for extensive renovations of the property.

Z cannot raise a resulting trust argument, and must instead opt for a constructive trust: (1) since she was not party to the acquisition of the property, the orthodox view is that RTs would be of no avail because they are based on a presumed intention at acquisition; (2) Z’s contributions to the household/ business expenses and payment for a redesign of the property are not referable to the purchase price, and thus cannot be used to compute an interest for her under resulting trust (Curley v Parkes).

Z might instead claim a constructive trust. Here, since her name is not on the register, she faces the additional hurdle of establishing an interest in the property. On an orthodox view, she must prove, under Rosset, 25 that

a constructive trust arises by an express common intention, plus reliance, and detriment. It will however be difficult for Z to prove an express intention, since the statement made by G and W is to the effect that they are “doing [her] a favour”, implying that she remains a guest in the property (contrasted with James v Thomas – where there was an express promise to be “well provided for”). Thus, although Z could prove detrimental reliance (based on her extensive expenses, and having sold her house) she will potentially fail under Rosset.

Yet, because of how Stack and Kernott (quantification cases) have been applied in acquisition cases (e.g. Curran v Collins, Geary v Rankine), B may benefit from another route to establish a common intention – namely, inference from the course of dealings. Here her contributions to the household and business expenses might give rise to an inference that she should hold a beneficial interest in the property (based on Stack para [69] factors), and the quantification of this interest might be imputed by the court per Jones.

latter case W and G’s shares would be reduced proportionately).

Likelihood of Sale W and G want a sale, whereas Z wishes to continue living in Rosario. As trustees, W or G could make an application for sale under S 14 TOLATA 1996. In determining whether to order a sale, a court would have regard to the factors in S 15 of the Act. Since no debts are owed to any creditors, the purpose of the trust will weigh heavily as a factor under s15(1)(a). W and G are no longer a couple – so the cohabitating purpose of the trust can no longer be fulfilled. Although on the facts Z is “somewhat frail” this may not be enough to prevent an order of sale against the circumstances and wishes of the majority of the beneficiaries with interests in possession (s15(3)).

For completeness I also note Z’s parallel proprietary estoppel claim. There is likely acquiescence in Z’s mistaken belief that her contributions would yield an interest combined with her clear detrimental reliance, which might make it unconscionable to reject her claim for an interest in the property (Thorner v Major).

Thus, by December 2021 it appears that W and G remain beneficial tenants in common, with Z having a proprietary interest either in the form of an inchoate estoppel equity, or through constructive trust (in the

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Rebekah Brown Mark: 84 Q9 CSPS Exam 2022 Concerns that the criminal justice system in England and Wales is not responsive to the specific needs of women are longstanding. The Government’s Female Offender Strategy 2018 set out aims to reduce crime and to improve outcomes for women at all points in the justice system. Are there any signs of success?

There has been significant, longstanding concerns amongst academics that the criminal justice system in England and Wales is not responsive to the specific needs of women. The Government’s Female Offender Strategy 2018 recognised the finding of the Corston Report 2007 of the inappropriateness and unsuitability of applying the current, male centric Criminal Justice System to female offenders, which has been the longstanding form of, and approach to, the punishment of

CRIMINOLOGY, SENTENCING AND THE PENAL SYSTEM female offenders. It further highlighted the importance of ensuring equality, through fairness and inclusivity between the two genders within the CJS. Following its recognition of the vulnerabilities and differing, and complex needs of female offenders, it submitted three main practical aims relating to the CJS (i) moving away from custodial to community-based sentences for women, (ii) reducing the female prison population, and (iii) improving the safety and mental health provisions and outcomes for those who receive custodial sentences. Though there are minimum “signs of success” regarding the fulfilment of these aims.

The specific needs of female offenders Daly 1993 has submitted that women’s accounts of offending suggest its roots often lie in structural inequalities, the

Corston Report further highlights that female offenders are often simultaneously victims given that most female offending stems from complex and enmeshed problems such as domestic violence, sexual abuse and mental health problems.

Women who commit crime are more likely to have been abused, emotionally, physically, and sexually, both in childhood and as adults, than men and those in the general population (MoJ 2019), 53% of women in prison, compared with 27% men, have experienced such abuse (Prison reform trust 2017). This is also reflected within the drug and alcohol dependency of female offenders, of which two-thirds required drug detoxification, compared to half of male prisoners (Corston, 2007).

Furthermore, women are less likely to have been employed before imprisonment and have lower rates of employment and 27 economic independence

compared to men (Easton and Piper, 2014).

Yet childcare burdens disproportionately fall upon them, with many female offenders being single mothers, the PRT (2013) estimates that around two-thirds of women in prison are primary carers for their dependent children.

Considering the evidence, Player has argued that many female offenders reflect not only symptoms of personal vulnerability but “indices of social harm” and of the “failure of the state institutions to provide equal and adequate protection”. This is further reinforced by the PRT(2011)’s depiction of female prisons as “a refuge for those who have slipped through the net of social services”, which is evident upon analysis of the types of crime and motivations of such by female offenders. This suggests that they need help, not punishment, and that early intervention is crucial, with many female offenders’ low-level crimes being preventable by addressing vulnerabilities and providing the necessary and support earlier, outside of the CJS. The desirability and necessity of early intervention was recognised by the FOS 2018 as an important aim.

The current failure of the CJS to respond to these specific needs After entering the CJS, it must be noted that imprisonment has a significant, negative physical and psychological effect on many female offenders, women don’t cope or respond well in the malecentric prison environment. Costa et al., 2001 has observed that women experience more negative emotion than men and are high in withdrawal and volatility, aspects of trait neuroticism which is the

proclivity for negative emotion, providing a psychological lens of analysis for women’s different mental and emotional responses to their environments.

Furthermore, Carlen 1998 emphasises the harmful effect upon domestic and sexual abuse victims (the majority of the female prison population) of the dynamics of penal power, being forcibly locked up and confined in an enclosed space, which often evokes experiences of past abuse and compounds feelings of distress.

Gelsthorpe and McIvor (2007) observed that women think, learn and behave differently from men, responding better to collaborative, community centred, single sex environments, this is supported

by Mclvor 2008’s observation that women tend to need more holistic, practical and emotional support for a wider range of problems, who need support to tackle underlying mental health problems, addiction and trauma which act as the roots of much female offending.

Such evidence, combined with those above, support the need to adopt a sentencing policy that diverts women away from prisons, and towards community orders. This was explicitly recognised by the FOS 2018’s stated aim of diverting female offenders away from custodial, to community-based forms of punishment.

Furthermore, the imprisonment of the 66% of female offenders who are mothers to dependent children has much further reaching consequences, upon the children and family she is forced to leave behind.

There are only 12 female prisons in the UK, resulting in the average distance from home for a female prisoner being 60 miles (Bromley Briefings Autumn 2014), this makes it difficult for children to visit their mothers which, impacts the emotional, physical, and developmental prospects of both mother and child. Farrington (2008) also warns of the danger that children with mothers in prison are more likely to fall victim to a cycle of criminality, creating long-term problems for those children and society at large.

This in turn negatively affects the potential for desistance, as Barry (2010) has convincingly argued that maintaining family bonds is vital to desistance as mothering provides female offenders with emotional support and helps them accrue social capital through the day-to-day commitment to their children. Conversely, the perceived and actual dispossession of the role and identity of ‘mother’ is particularly distressing for many female offenders, inducing feelings of strong negative emotion and shame (Walker and Worrall, 2000), exasperating their detachment from a pro-social identity. Thus, it is vital for a mother to be able to preserve these relationships throughout her sentence. The FOS 2018 explicitly highlighted this disproportionate suffering faced by mothers/ caretakers and their wider impacts upon their families resulting from imprisonment.

“Signs of success” of the Female Offender Strategy 2018 upon the experience of, and outcomes for, women in the CJS Unfortunately, the “signs of success” of the FOS 2018 are very limited, as concluded by the Prison

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Reform Trust 2021 Evaluation of the 2018 Strategy, which held that the majority of its promises remain unachieved or partially achieved.

There has arguably been “signs of success” in relation to the aim of reducing the prison population following the FOS 2018, given that there were 3,869 incarcerated females in 2018, (MoJ 2018), reduced to 3,129 by September 2021 (Bromley Briefings 2021), representing a notable and significant decrease.

However, in order to truly be deemed a “sign of success” it will be important to observe whether this reflects the start of an ongoing, long-term and sustained purposive reduction of the female prison population, or whether the Covid-19 pandemic artificially deflated the figures.

Furthermore, the recording by the Bromley Briefings 2021 that 77% of imprisoned female offenders committed a nonviolent offence, suggesting a continued, inappropriate overuse of imprisonment, despite its detrimental effects (considered above).

The Sentencing (Women) Bill 2021, currently at its second reading in the House of Commons, requires the court to impose community sentences of women offenders unless it is established that they have “committed a serious or violent offence and pose a threat to the public”. This may evidence a “sign of success” of the FOS 2018, through its recognition by the government, manifesting itself in legislative enactment which will enact practical change. However, whether this will really amount to a “success”, in terms of reducing the rate of imprisonment of

female offenders in practice is questionable. This is in light of the simultaneous, contradictory stated intention of the government to add 500 beds to female prisons due to predictions of an increase in offending in the aftermath of Covid. This is compounded by its failure to change their sentencing guidelines to reflect this policy, and also its continued failure to require consideration of the mother, and families’, Article 8 right to family life in sentencing.

Furthermore, there are no “signs of success” relating to the aim of improving the safety of prisons for women, and the mental health provisions and outcomes for incarcerated women. This is directly evidenced within the self-harm and attempted suicide rates for women in prison, during the Covid-19 restrictions, the rate of selfharm for women has been seven times higher than for men (HM Inspectorate of Prisons 2022). The Prison Reform Trust 2021 Evaluation has highlighted the worryingly high, and ever-increasing rates of self-harm, yet inadequacy of mental health support and programmes within prisons, the majority of which were suspended during the Covid-19 pandemic.

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Medhansh Kumar Mark: 80 Q4, 2022 ‘Through embracing oblique intention, the law of England and Wales has collapsed the distinction between intention and extreme recklessness.’

Discuss.

Oblique intention, as defined in Woollin, may be found by the jury where the proscribed consequence (death, in Woollin) is a virtually certain consequence and the defendant appreciated that this was the case. By way of contrast, recklessness requires that the defendant foresaw a risk of a particular result arising due to his actions and that, in the circumstances known to him, it was unreasonable for him to take that risk. There is therefore a ‘balancing exercise’ between the size of the risk and the utility of the action in determining if the risk-taking was culpable enough to be characterised as reckless (and so, potentially, inviting criminal sanction).

Although Woollin goes beyond purposive

CRIMINAL LAW intention, there still exists a relevant distinction between Woollin intention and extreme recklessness.

Recklessness may be categorised as ‘extreme’ for two reasons: first, because the risk was particularly unreasonable to have taken, and second, because the size of the risk (the probability) was very high.

The first case be can easily distinguished from oblique intention. Ormerod and Laird suggest that some risks are justifiable even when they are substantial, because the social utility of the action justifies taking the risk. So, if the defendant, in an act of reasonable self defence, damages a window, he is not guilty of reckless criminal damage (Sears). By way of contrast, they suggest that there are some risks that have no social utility, such as a game of Russian roulette, and so the

slightest possibility of harm should be enough to condemn it. Since a game of this sort carries few benefits, and a notinsubstantial risk of harm, it is right to condemn it as reckless.

This is, however, different from oblique intention because the harm is not virtually certain.

Therefore, where the activity has no social utility attached to it, but is particularly blameworthy, it is appropriate to consider this ‘extremely reckless’.

The second case is more problematic for those keen to restrict intention to purposive intention only. Moore’s perspective on intention can be used to argue that, by accepting oblique intention, the law has paid insufficient regard to the moral quality of intended acts or omissions. He argues that intention demonstrates a desire to control a result on the

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defendant’s part. The result plays a key part in her moral assessment about how to conduct herself, and indeed, provides the purpose, or reason for why she acts. Foresight, it is argued, is somehow less blameworthy because it did not form a part of the moral assessment. If Moore is right, then taking a risk with unfortunate consequences that are virtually certain is less blameworthy than acting in order to produce those same consequences.

However, the decision in Woollin does not mean that juries must find intention; they are entitled to do so, but are granted some moral elbow room. Therefore, Moore’s argument that the moral blameworthiness of intention might be diluted is not likely to suffice here because the jury, when directed on Woollin-type issues is only likely to find intention where the defendant’s conduct is morally blameworthy anyway.

A key, and strong rebuttal to the proposition set out in the question is offered by Du-Bois Pedain. She argues that the difference between recklessness where the risk is highly probable and intention is the defendant’s endorsement of the harm: to give it, and the risk of its occurring, his blessing. Her argument is that Woollin, far from recognising a second, distinct form of intention, falls within her endorsement test because the defendant can no longer disassociate himself in any meaningful way from the outcome, once it comes about.

This conception of intention as endorsement makes sense of the distinction between extreme recklessness and intention while still remaining in a cognitivist, orthodox subjective mode of thinking about intention within the criminal law. On this

definition and understanding of intention, the result in Woollin, and the outcome of oblique intention directions in similar cases is removed from cases of extreme recklessness: the difference lies in the particular attitude of the defendant in question.

However, even on a more orthodox approach, the decision in Woollin is reconcilable with the criminal law preserving a distinction between extreme recklessness and intentional conduct. As Sidgewick notes, intention is different from desire, and even if the consequences of our intentions and volitions are accompanied by circumstances that are potentially undesirable, as they arise out of volitional choices. Therefore, the moral distinction raised by Moore is on shaky ground.

In conclusion, there is a perceptible difference between extreme recklessness on the one hand and oblique intention on the other. The basis of that distinction can be argued on a more orthodox view, but that suffers from over and underinclusivity issues as highlighted

by Norrie, commenting on Steane. Sir JC Smith suggested that in those decisions, the law operated to provide a concealed necessity defence to prevent seemingly unjust results. To reflect better the distinction between the cases where oblique intent can be, and is found, from recklessness, it is necessary to adopt a unified, albeit endorsement based structure of intention.

Doctrinally speaking, the moral elbow room granted to juries in oblique intent cases, compared to the lack of any such space in the case of extremely

blameworthy recklessness suggests that the law has not done any violence to the distinctions between the two forms of mens rea.

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Michael Smith Mark: 70 Q5, 2022 How and why did the courts of common law come to deal with actions for defamation?

The courts of common law dealt with defamation first via a series of ad-hoc remedies to supplement the ecclesiastical jurisdiction of the Auctoritate Dei Patris in 1222, and then, once the ecclesiastical courts lost their jurisdiction over the imputations of secular crimes, through expanding trespass on the case to cover defamation in the 16th century.

How did the common law courts deal with defamation?

The genesis of the common law’s jurisdiction over defamation can be found in a series of miscellaneous remedies for certain instances of defamatory remarks. By statute of 1285, the royal courts had a jurisdiction over scandalum magnatum, which protected great men from

LEGAL HISTORY false statements that would bring discord to the realm (Baker). Further, a special form of trespass vi et armis was available against those who lay in wait and threatened to seize a man as a villein. Although formally an action brough for assault, the essence of the action was the claim of villeinage (Haukyns v.

Broune 1477- 83) Indeed, in Asplvn v Fox (1511) it was held that no allegation of lying in wait needed, the words themselves constituted the trespass. Similarly, allegations of being a traitor were actionable (Gisors v Rys (1321)), as was the publication of a false title or muniments with the intent to disturb the title or possession of the legitimate holder of land under a statute of Henry V. However, these remedies were disparate and there was no conceptual unity between them. Indeed, as late as 1497, Fyneux CJKB had said that defamation was ‘a wholly

jspiritual offence’ and thus entirely within the jurisdiction of the ecclesiastical courts.

However, by the early 16th century, the royal courts were expanding trespass on the case to cover defamation. Helmholtz notes that the judges approached such expansion hesitantly, and thus the application of trespass on the case in cases of defamation was slow. The action for defamation first on the plea rolls in 1507 (Owughan v.

Baker), but the first judgement was given 10 years later in Lyncolne v. Hendy. Further, it was only in the 1530s that the litigants felt secure enough in using an action on the case that they started to enter pleas simply as defamation as opposed to relating it back to the miscellaneous actions described above (Helmholtz).

Ibbetson notes that even after this period, until the turn of the 17th century, “the gravitational force of the

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old ecclesiastical action meant that the new action on the case for defamation did not easily cut loose from its ecclesiastical predecessor”. As such, the scope of the action on the case was limited and rarely extended beyond the scope of the ecclesiastical action, evidenced by the argument of Walmsley Serjeant-at-law in Boughton v.

Bishop of Coventry and Lichfield (1584), where he defines slander as ’factutn vel dictum minus rectum alteri praebens occasionem ruine’, a definition taken from the fifteenth century canonist Summa Angelica.

Thus, until the end of the 16th century, the action was mainly concerned with imputations of crime in order to fill in the gap left by the inapplicability of the ecclesiastical remedy (discussed below). Beyond crime, while it was not generally actionable to allege illness (Housden v.

Stoyton (1568)), allegations of leprosy and syphilis were (Outwell v. Waleys (1535)).

Leprosy, we can see as being straightforwardly transported from the ecclesiastical action to the common law action (notwithstanding Lyndwood’s classification of leprosy as a mere defect), and syphilis was likely added due to the similarity of symptoms (Helmhotlz).

Helmholtz notes that allegations of professional incompetence were not generally actionable, though an exception was made for allegations of untrustworthiness against lawyers and public officials.

Claims of villeinage became absorbed into the action relatively easily (e.g., Perkins v Abbot of Combe (1512)) but were largely unactionable after the 1580s, evidenced by defendants demurring the actionability of such remarks.

By the turn of 17th century, the basis of the action had changed. The focus was no longer on what the ecclesiastical remedy had provided, but on the unifying ground of loss (Ibbetson). As such, words became generally actionable if they caused temporal loss to the plaintiff.

This was first achieved through the lens of spiritual defamation that caused financial loss, and then through expanding the actionability of allegations of occupational unfitness. The result was a class slanders actionable per se (those categories of words which were accepted as actionable at all) and a “wider and woollier idea” category of actions based on the idea that temporal loss itself could be a cause of action (Milsom).

Why did the common law courts deal with defamation?

The ad-hoc remedies were available at common law to supplement the ecclesiastical remedy. Ecclesiastical courts had no jurisdiction over claims of villeinage, nor could they award damages, so were inapt do deal with defamatory remarks that caused great financial loss such as scandalum magnatum.

There are then two primary reasons that the common law courts expanded the action on the case to cover defamatory remarks rather than merely maintaining the miscellaneous actions. The first is that, after Tanner v Cornyssh (1472), the prevailing thought was that the ecclesiastical courts could not have jurisdiction over the allegations of criminality, as criminality was to be decided

by jury, not by the church.

Helmholtz dates it at 1480 that the ecclesiastical court was under constant attack over its jurisdiction, and thus stopped hearing such cases. This reining in of the spiritual jurisdiction had created a glaring gap in the law.

While such minor matters as false imputations of gluttony could be punished with penance, untruths which threatened a man’s life or livelihood seemed not to be remediable anywhere (Helmhotlz). Thus, the courts of common law expanded the action on the case to apply to allegations of criminality. The second reason, applying to defamatory remarks more broadly, was the inadequacy of the spiritual remedy. Penance may have been used to force a monetary settlement between the parties, but strictly the ecclesiastical courts could not demand that a party pay damages. The actual harm suffered by plaintiffs, consequent upon the damage to reputation, was not remediable in the ecclesiastical courts. If the first reason is what caused the creation of the common law action, the second reason is what provoked its expansion into defamatory remarks beyond the imputation of a crime.

Further, the context of the early 16th century provided fertile soil from which the action could develop. Actions on the case had been extended to enforcing the payment of debts, converting goods, and for breach of promise.

It was therefore an opportune time to introduce an action for words, especially given that the miscellaneous common law remedies provided a jurisdictional basis for the action for words to evolve.

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