Law - Book chapters

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Taking the Long View: Strangers at the Bedside: A History of How Law and Bioethics Transformed Medical Decision Making
(Routledge, 2023-07) Donnelly, Mary; Lyons, Barry
This chapter concerns David Rothman’s origin story of the incursion of ‘outsiders’ (lawyers and bioethicists) into the world of medicine. Strangers at the Bedside: A History of How Law and Bioethics Transformed Medical Decision Making explains the how and why of this incursion and provides a meditation on the merits of the changes wrought. Written by an outsider and an insider, this chapter argues that the legacy of Strangers is not that it tells the ‘truth’ of the origins of contemporary health law, but, rather, lies in the methodological and evaluative approach which it employs. By asking questions about what bioethics and law have achieved, Strangers invites us to ponder their contemporary role and to critically evaluate their capacity to make a future meaningful contribution to the rights, health, and security of the public in their interactions with healthcare.
Making the future happen: Law reform lessons from the Victorian Royal Commission
(Routledge, 2023-09-15) Donnelly, Mary
As mental health law reform projects proliferate, especially in the wake of the United Nations Convention on the Rights of Persons with Disabilities (CRPD), it becomes necessary to find ways to analyse these projects and to evaluate their successes and failures. This chapter argues that an important element in this respect relates to the process employed in developing law reform proposals which, it contends, has consequences for both the reform project’s legitimacy and its potential to effect meaningful change. Drawing on the approach of the Royal Commission into Victoria’s Mental Health System, this chapter seeks to identify the components of an appropriate law reform process. To do this, it begins by exploring the differing impetuses for mental health law reform and identifying the variety of law reform processes which can be employed. It then examines how the Victorian Royal Commission approached its task. It concludes that the Royal Commission’s approach provides valuable lessons for other jurisdictions, both in its law reform proposals and in its process.
The court as a site of rediscrimination
(Palgrave Macmillan, 2023-11-28) Morgan-Williams, Samantha; Donson, Fiona; Flower, Lisa; Klosterkamp, Sarah
This chapter provides an ethnographic analysis of how Travellers perceive the Courts and ‘justice’ (in the context of equality litigation), centring their experiences of discrimination and marginalisation. In presenting data on the adverse experiences of Travellers who have taken equality cases to the Irish District Court, Ireland’s lowest court level, we recognise the inability of existing desk-based research to capture emotional and memorial elements of adversarial court appearances for Irish Travellers. Speaking to existing literature promoting the importance of understanding how justice is experienced through court observation and lived experience. These observations allowed the authors to experience the Court through the eyes of Travellers, follow-up interviews provided insight into individual experiences which would not be accessible via observation. Ultimately, this discussion feeds into the need for a broader recognition and understanding of vulnerable court-users experiences to adequately inform reform of equality adjudication bodies, enhance judicial training, and enable actions ensuring access to justice for the most vulnerable.
Proprietary estoppel, promises and mistaken belief
(Hart Publishing, 2011-05-13) Mee, John; Bright, Susan
This chapter considers the restrictive vision of proprietary estoppel put forward by Lord Scott and Lord Walker in the House of Lords in Yeoman’s Row v Cobbe [2008] UKHL 55. It explains that the impact of taking their arguments seriously would be the elimination (or, at least, the severe restriction) of one of the three distinct principles subsumed within proprietary estoppel, ie the promise principle stated by Lord Kingsdown in Ramsden v Dyson. The chapter suggests that, although the approach in Cobbe runs counter to the current of equitable development over the last forty years, it does highlight important issues of principle surrounding the scope of proprietary estoppel. Despite the tendency to downplay the role of promise within the doctrine, the pre-Cobbe version of proprietary estoppel ventures into the territory of the law of contract, doing so only in respect of promises related to land/property (without any convincing justification as a matter of principle for this restriction). Rather than seek to deal comprehensively with the very large question as to the merits or otherwise of Lord Kingsdown’s promise principle, this chapter seeks to address a more modest set of questions. First, it points out that the particular concern which seems to have animated the judges in Cobbe – that it is wrong to allow C to succeed on the basis of a promise which C knows is binding only in honour – can be accommodated within the conventional modern understanding of proprietary estoppel, without any need to eliminate or severely curtail Lord Kingsdown’s principle. Secondly, the chapter addresses the seductive suggestion that a distinction should be drawn between the commercial and the domestic contexts, with the restriction upon proprietary estoppel suggested in Cobbe applying only in the commercial context. It concludes on the basis of a number of different arguments, that this suggestion does not represent a desirable avenue of development for the law. One of the points made against any application of a mistake requirement in the context of the promise principle is that this requirement makes sense only in the context of the acquiescence principle; the suggestion that it should be applied more broadly appears reminiscent of attempts in the past to apply the probanda to all proprietary estoppel cases. In terms of the future development of the law of estoppel, what is needed is a willingness to separate out for analysis the distinct principles which have, for historical reasons, been grouped together under the heading of proprietary estoppel. The emphasis on ‘unconscionability’ and ‘synthesis’, encouraged by the overrated judgment of Oliver J in Taylor Fashions, have contributed to the current confused state of the law. Following the debacle represented by Cobbe, it is time for a somewhat more reflective approach.
Reforming the law of prescription: A cautionary tale from Ireland
(Hart Publishing, 2015-08-27) Mee, John; Barr, Warren
The law on the prescriptive acquisition of easements and profits, as it evolved in England and Wales and was inherited by other common law jurisdictions, has long been considered unsatisfactory. ‘Clouds and darkness [had] settled down over the whole subject’ even before the ‘fitting addition to the chaos’ represented by the Prescription Act 1832. It is not surprising, therefore, that reform has been under consideration in a number of jurisdictions. As part of a wide-ranging reform of land law in the Republic of Ireland, the law of prescription was radically recast by Part 8 of the Land and Conveyancing Law Reform Act 2009 (the LCLRA). The three existing forms of prescription — common law prescription, prescription under the doctrine of lost modern grant, and statutory prescription under the Prescription Act 1832 — were abolished and replaced by a new form of statutory prescription. The period for the acquisition by prescription was reduced to 12 years, creating what one commentator has described as ‘The most liberal system of prescription ever proposed’. The new regime was due to come into effect after a three-year transition period but, before this period had elapsed, the scheme was modified by the Civil Law (Miscellaneous Provisions) Act 2011. Unfortunately, even after the 2011 amendments, there appear to be significant difficulties with the new Irish scheme. This chapter analyses the problems that have arisen in Ireland in relation to the reform of the law of prescription and considers the possible lessons for reformers in other jurisdictions, giving special attention to comparisons with the proposals made by the Law Commission for England and Wales in 2011.

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