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Oxford University Undergraduate Law Journal Issue [5] 2016 OXFORD UNIVERSITY UNDERGRADUATE LAW JOURNAL OXFORD UNIVERSITY i UNDERGRADUATE LAW JOURNAL The views expressed by the contributors are not necessarily those of the Editorial or Honourary Board of the Oxford University Undergraduate Law Journal. Whilst every effort has been made to ensure that the information contained in this journal is correct, the Editors and the authors cannot accept any responsibility for any errors or omissions, or for any consequences resulting therefrom. © 2016 Individual authors OXFORD UNIVERSITY ii UNDERGRADUATE LAW JOURNAL -The- 5th Editorial Board of the Oxford University Undergraduate Law Journal 2015-2016 Editors-in-Chief Vincent Ooi Denise Lim Trinity College Lincoln College Editors Marius Benedikt Gass Zi Xiang Tan St John’s College University College Senior Associate Editors Daniel Judd Esther Mak Jesus College University College Associate Editors Charles Cartiglia Mun Shuen Goh St Hugh’s College New College Jian Jun Liew Gabriel Lim Corpus Christi College Brasenose College Weng Hong Low Daron Tan Magdalen College St Anne’s College Vincent Wong Harris Manchester College Publicity and Design Officer Sponsorship Officer Grace Tsai Patrick Yeo Worcester College St John’s College OXFORD UNIVERSITY iii UNDERGRADUATE LAW JOURNAL -The- Honourary Board Sir Nicolas Bratza Professor Michael Bridge Donald Findlay QC Professor Christopher Forsyth Ian Gatt QC The Right Hon the Lord Judge The Right Hon the Lord Kerr of Tonaghmore Michael Mansfield QC The Right Hon the Lord Neuberger of Abbotsbury The Right Hon the Lord Phillips of Worth Matravers Lord Pannick QC His Honour Judge Gordon Risius CB Dinah Rose QC Sir Konrad Schiemann The Right Hon the Lord Wilson of Culworth OXFORD UNIVERSITY iv UNDERGRADUATE LAW JOURNAL CONTENTS i. Foreword 1 Dr James Goudkamp, Fellow of Keble College, Associate Professor of Law ii. Introduction 4 Vincent Ooi and Denise Lim, Editors-in-Chief iii. Equity’s New Child: The Birth of the Family Proprietary Estoppel 6 Zi Xiang Tan (Warren) Winner of the Norton Rose Fulbright Prize for the Best Article in Contract, Tort, Trusts, and Land Law iv. ‘Where there is discord, may we bring harmony’: 22 AIB Group (UK) v Mark Redler and the Perils Facing Equity Matthew Hoyle v. Rebates post-Post Danmark II 38 Sym Hunt vi. Can International Law Manage Refugee Crises? 54 Azfer Ali Khan vii. Considering the Best Interests Test in the Context of Disabilities 67 Vincent Ooi and Jia Wei Loh viii. A Thing Less Likely To Do Mischief: An Alternative Application of the 80 Rule in Rylands v Fletcher to ‘Ultra-Hazardous’ Activities Ryan Chan-Wei ix. The Future after Durant: Is Backwards Tracing the Way Forward? 91 Alexandra Clarke OXFORD UNIVERSITY v UNDERGRADUATE LAW JOURNAL Foreword Dr James Goudkamp, Fellow of Keble College, Associate Professor of Law ost law journals and reviews in the common-law world are administered by student editorial committees. This is especially true in the case of Australia, M Canada, and the United States.1 The United Kingdom is an outlier in this regard, with the preponderance of journals and reviews being run by faculty members. The Oxford University Undergraduate Law Journal bucks this trend. It is student-run, with limited input and oversight coming from the Oxford Law Faculty. The Journal is distinctive in another respect: not only is it run by a student editorial team but its contributions are authored exclusively by undergraduate students. The Editors-in-Chief observe in their Introduction that this is the first issue of the Journal to include contributions penned by students from outside of Oxford. Interesting debates can be had about the functions served by law journals and reviews.2 There is similarly scope for stimulating argument about whether it is better for law journals and reviews to be edited by students or faculty members.3 Finally, one can discuss fruitfully whether students should (and should be afforded a platform to) publish their work. It is themes of this nature, all of which are largely unexplored in the case of England, that I want briefly to explore in this Foreword. In doing so, I mean no disrespect to the contributors to the present issue (all of whom I am certain are among the most capable students in their cohort) or to the current editorial team. I simply wish to explore critically certain questions in the traditional academic spirit. My aim is to be constructive in doing so, and I hope that my remarks will be understood with that end in mind. Readers who are seeking an overview of the contents of the present issue are referred to Introduction written by the Editors-in-Chief. I wish to begin by asking whether students should publish their work. There are several reasons why the opportunity to publish is (or should be) attractive to students (I encourage my own students to pursue it vigorously, especially my doctoral candidates). Most obviously, a student who publishes his or her work thereby marks him or herself out from nearly all of his or her peers. This can be an obvious advantage when it comes to applying for positions in law firms, pupillages, scholarships, and further study. Writing for journals and reviews can also be educative. Students are afforded an opportunity to develop thoughts that might otherwise remain embryonic. There is, therefore, a potential payoff in so far as performance in examinations is concerned. However, there are also reasons why students might not wish to publish their work. Indeed, it might be suggested that students should be protected from themselves and that their work should not put into the public domain. The point might be developed in the 1 The practice in the United States is thoroughly institutionalized and has by far the longest legacy. For exhaustive discussion, see ML Closen and RJ Dzielak, ‘The History and Influence of the Law Review Institution’ (1997) 30 Akron Law Review, Issue 1, Article 2. 2 Consider MD Kirby, ‘Welcome to Law Reviews’ (2002) 26 Melbourne University Law Review 1. 3 One provocative engagement with this theme is RA Posner, ‘Law Reviews’ (2006) 46 Washburn Law Journal 155. OXFORD UNIVERSITY 1 UNDERGRADUATE LAW JOURNAL following way. Students, because they are at the beginning of their legal careers, will naturally have a relatively incomplete view of the legal universe. Consequently, their contributions are bound to overlook important points or, at a minimum, be insufficiently nuanced in certain respects. One American scholar wrote trenchantly in 1926: ‘[s]tudent notes cannot build up a body of doctrine. They will always lack that breadth of legal knowledge and maturity of view which can only come to one who has lived with a specialty for many years.’ 4 In these circumstances, is it really in students’ interests to have their thoughts immortalized in print? It might be said in response that this question (or at least a question similar to it) can properly be asked also in relation to established researchers. Thus, it is not uncommon for experienced writers to regret publishing at least some of their writing. The late Peter Birks famously remarked towards the end of his glittering career that ‘[a]lmost everything of mine now needs calling back for burning’.5 Birks evidently wished that he had not put most of his thinking into the public domain. It might be, therefore, that law students are no more likely to regret (or have cause to regret) the publication of their work than legal academics. Is it worth reading student-authored contributions? It might be thought that there are two reasons not to do so. The first reason is that student contributions might offer analyses that are underdeveloped or simply wrong. However, this reason has limited force. For one thing, there is often much to learn from the mistakes and failings of others. The study of error is frequently revealing. Furthermore, this first reason is not specific to student- written articles. The cold hard truth – indeed, it is a notorious fact – is that much published work is simply not worth reading. Academics are all but compelled to publish endless streams of text on account of large a variety of sticks and carrots.6 It is hardly surprising, in these circumstances, that the quality of academic writings generally is highly variable. Accordingly, it is unlikely that there is anything unique in so far as quality is concerned about student- written work. The second reason to avoid student-authored work is that students, because their ideas have had less time in which to mature, might be more prone than established writers to resile from their published positions. It is worth recalling in this regard that judges, for much of the history of the common law, declined to cite the work of living scholars, lest any scholar adjust their thinking.7 This judicial convention, however, was difficult (if not impossible) to justify, and it is unsurprising that it has been abandoned.8 It is very hard to see why the fact that a writer might change his or her stance is a reason for not to engage with the writer’s work. Even if a given analysis is later rejected by its original architect, it does not follow that the analysis is defective. It may well be that it is the abandonment of the analysis that is unjustified rather than the analysis. This second reason (like the first) is unconvincing. 4 A Kocourek, ‘Editorial Note’ (1926) 21 Illinois Law Review 147, 149. 5 P Birks, Unjust Enrichment (2nd edn, OUP 2005) xii. 6 For a highly entertaining yet searching and perceptive discussion, see L Green, ‘Why every academic under 60 must have a blog’ <https://ljmgreen.com/2016/09/14/why-every-academic-under-60-must- have-a-blog/> accessed 17 November 2016.
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