The law of the land

This article considers the status of foreign precedents in national courts. It examines possible reasons for courts referring to them and concludes that, absent some incorporating convention, judges cannot ever be said to have an obligation to refer to them. But it also shows that there is nothing unprincipled about (notwithstanding that there are some good reasons, especially in the context of constitutional adjudication, for cautioning against) national courts choosing to treat foreign precedents as persuasive authority. It is also suggested that no satisfactory argument can be adduced to support the proposition that a national court must never rely on foreign precedent as the sole reason for modifying the indigenous common law – though it seems very unlikely that judges would ever need (still less want) to rely on foreign precedent in this way

Custom as law in English law

This article considers prescription as a customary standard of legal validity which enables judges to identify certain customs as law even though the status of those customs as law cannot be ascribed to a law-making authority. Although claims as to customs having prescribed are often bound up with claims as to the quality (as opposed to the validity) of custom as law, prescribed custom is properly conceived to be a feature of the rule of recognition – a criterion by which a court can identify, and declare, a custom as already existing law as distinct from both custom without the force of law and custom turned into positive law

The law of the land

This article considers the status of foreign precedents in national courts. It examines possible reasons for courts referring to them and concludes that, absent some incorporating convention, judges cannot ever be said to have an obligation to refer to them. But it also shows that there is nothing unprincipled about national courts choosing to treat foreign precedents as persuasive authority, notwithstanding that there are some good reasons, especially in the context of constitutional adjudication, for cautioning against this. It is also suggested that no satisfactory argument can be adduced to support the proposition that a national court must never rely on foreign precedent as the sole reason for modifying the indigenous common law – though it seems very unlikely that judges would ever need (still less want) to rely on foreign precedent in this way

Acquisitive prescription and fundamental rights

Various seventeenth-century parliamentarians resorted to the concept of acquisitive prescription when denouncing irresponsible use of the royal prerogative. Often, the concept was invoked to convey nothing more than that a custom had existed since time immemorial. But sometimes the concept was being used in its legal sense: to denote the acquisition of a right (as if someone with the authority to grant that right had done so) by virtue of some instance of long and uninterrupted enjoyment over a period of time. This paper considers the application of acquisitive prescription, a doctrine rooted in the medieval law of land obligations, in Stuart constitutional discourse

The outer limits of English judicial review

Considers the reasons for restricting the Administrative Court's judicial review powers to public law concerns, and why a measure of uncertainty over the outer limits of judicial review's supervisory jurisdiction is likely to remain. Examines possible arguments to support the restriction based on issues of jurisdiction, the monopoly powers test, public interest, the operation of the rule of law and the available remedies

Judicial disapproval as a constitutional technique

In this article, I consider judicial disapproval as a form of non-binding review of the constitutionality of legislation. Judicial disapproval is epitomized by the “declaration of incompatibility” – a concept which is commonly thought to have been pioneered in the United Kingdom in the 1990s. I show that the concept in fact has a considerably longer history. In the 1940s, the concept was envisaged and endorsed by Britain’s principal contributor to the drafting of the European Convention on Human Rights, David Maxwell Fyfe, and by Hersch Lauterpacht in his work on the incorporation of an international bill of rights into national legal systems. Variants on the concept were also examined and given some credence by American constitutional thinkers during the Revolutionary era and the early Republic. After considering the history of judicial disapproval as a constitutional technique, I offer some observations on the differences between judicial disapproval and Marbury-style judicial review. I conclude with a brief explanation as to why judicial disapproval is likely to persist as a form of rights review in the United Kingdom, whatever the fate of the Human Rights Act 1998

Colorectal Hyperplasia and Dysplasia Due to Human Carcinoembryonic Antigen (CEA) Family Member Expression in Transgenic Mice

CEA and CEACAM6 are immunoglobulin family intercellular adhesion molecules that are up-regulated without structural mutations in approximately 70% of human cancers. Results in in vitro systems showing tumorigenic effects for these molecules suggest that this correlation could indicate an instrumental role in tumorigenesis. To test whether this applies in vivo, transgenic mice harboring 187 kb of the human genome containing four CEA family member genes including the CEA and CEACAM6 genes were created and their copy numbers increased by mating until colonocyte expression levels reached levels seen in human colorectal carcinomas. The colonocyte surface level of integrin α5 and the activation of AKT increased progressively with the expression levels of CEA/CEACAM6. Colonic crypts showed a progressive increase in colonocyte proliferation, an increase in crypt fission, and a strong inhibition of both differentiation and anoikis/apoptosis. All transgenic mice showed massively enlarged colons comprising a continuous mosaic of severe hyperplasia, dysplasia and serrated adenomatous morphology. These results suggest that up-regulated non-mutated adhesion molecules could have a significant instrumental role in human cancer