THE PAST, PRESENT AND FUTURE OF THE CAMBRIDGE LAW JOURNAL

This introductory essay reviews the history of the Journal, divided into two stages: the period from 1921 to 1953; and that from 1954 to today. It examines the changing institutional arrangements, personnel, as well as some of the highlights in the content of the Journal. If there is a theme, it is that the Journal was established by and developed its reputation because of the efforts of many of the outstanding scholars at Cambridge who over the decades offered the outputs of their talents to the Journal; and that the Journal has used that reputation more and more to attract the scholars outside Cambridge – indeed from all over the world. Whatever the aims of those who established the Cambridge Law Journal in 1921, and without much self-consciousness, the Journal incrementally acquired the status and practices of a learned journal. Finally, the essay reflects on the future, in particular the challenges of digitisation, open access and inclusivity.

with his disciples. 17 In a majority decision 3:2 rejecting the editor, Denis Lemon's appeal, the House of Lords held that the crime required only an intention to publish material that was as a matter of fact blasphemous, rather than a showing of an intent to blaspheme. Siding with the majority, Lord Scarman referred to Kenny's "brilliant article", 18 and used it as a basis for arguing that the law should be extended beyond material offensive to Christians so as to reflect the religiously plural nature of contemporary society. (As it turned out, the offence of blasphemy was abolished by section 79 of the Criminal Justice and Immigration Act 2008.) Another important article in this period, published in 1932, was co-written by Arthur Goodhart and Jack Hamson entitled "Undisclosed Principals in Contract". 19 The article sought to explain why, in spite of the doctrine of privity of contract, the law provides that a principal who was at the time of the making of a contract completely unknown to the other party can sue or be sued on the contract of his agent. Goodhart and Hamson sought to explain the rule by analogy with the law on assignment. Sixty-two years later, Lord Lloyd of Berwick, giving judgment for the Privy Council in Siu Yin Kwan v Eastern Insurance Co Ltd., stated that from the extensive literature their "Lordships would especially mention the influential article by Goodhart and Hamson". 20 The articles exerted influence in other ways, particularly over the best students. One example is Lord McNair's 1931 paper entitled "This Polemis Business", 21 concerning supposed implications for contract of the notorious Court of Appeal decision in Re Polemis. In that case the defendant, who chartered the plaintiff's ship, the Thrasyvoulos, was held liable for all the damage resulting from the negligent act of its stevedores, which led to the destruction by fire of the ship, even though this was not a foreseeable consequence of the stevedores' negligence. 22 The case, which was effectively overruled by the Privy Council in The Wagon Mound (No. 1), 23 generated a voluminous literature. 24 Because the parties to the litigation were parties to a contract, commentators as prestigious as Winfield and Frederick Pollock had suggested the case had altered the rules on remoteness of damages in contract. Presenting the pleadings from the case in detail, Lord McNair demonstrated that the case was one of tort, and while there was no reason a party to a contract should not be 17 [1979] A.C. 617. 18 Ibid., at 658 (Lord Scarman). 19 [1932] C.L.J. 320. 20 [1994]   From the start, book reviews were a significant component of the Journal. In the 1930 issue, 35 pages out of 124 were devoted to reviews; in 1951 over 60 pages of a 188-page issue. The reviews themselves were of variable length, depending on the book under review, and many of them might better be described as notes. 28  At the Journal's inauguration, Hazeltine saw the success of student-run law reviews in the US as "a happy augury for the prosperity of the Cambridge Law Journal". 32 In the US, and in spite of some famous critiques, 33 Faculty-run journals would continue to switch to the student-edited model. 34 In contrast, in 1954, following a review, 35 it was decided that the Journal should become a Faculty-run affair. The Faculty Board minutes do not reveal the precise reasons, but Arthur Goodhart would later explain that this was because there were not a sufficient number of students who were able to write case notes of a suitable quality. 36 As a Faculty publication, the Journal now offered two issues each year. Stanley (S.J.) Bailey, who had succeeded Sir Percy Winfield as editor of the student review in 1948 saw the Faculty journal through its first two issues, 37 before being replaced by the former Note Editor and Professor of Comparative Law, Jack Hamson. There was a great deal of continuity between the new Journal, published "Under the auspices of the Faculty of Law" and its predecessor. The publisher, Stevens & Sons Ltd., and printer, the Eastern Press in Reading, continued. 38 32 Hazeltine, "Foreword", 3. 33 Most famously, F. Rodell, "Goodbye to Law Reviews" (1936) 23 Virginia Law Review 38 (arguing that law reviews "turn . . . out stuff that is not fit to read, on subjects that are not worth the bother of writing about"). 34 For example, the Michigan Law Review, established in 1902, which began as a Faculty journal (though supported by ten editorial assistants from the student body) became a primarily student edited journal in 1940 (though with a Faculty advisory board) and is now run by over 100 student editors.   Although the shift to being run by the Faculty was a significant one, the Journal maintained much of its original structure. The reports of the College law societies (each recounting that so-and-so had delivered his excellent paper to the society) had been omitted after 1924, 41 leaving three sections of articles, case notes and book reviews, as well as the annual report of Cambridge University Law Society. Ellis Lewis continued as book review editor, succeeded in 1960 by John Thornely who carried on the role for 25 years. 42

A. Case Notes
The most obvious change was in the case notes. In 1954 the section case notes became "case and comments" and were relocated to the first section of each issue, signalling their premier importance. The rubric's reference "and comments" facilitated the publication of notes on new legislation, C.L.J. s15 The Past, Present and Future of the Cambridge Law Journal new treaties and reports of law reform bodies. 43 Indeed, the material commented upon need not itself be "new": in March 2021, the "case and comment" section featured a note on a recently discovered proceeding that had occurred in King's Bench in 1447. 44 The notes were written largely by Faculty members, 45 including what might be called "junior faculty" such as doctoral student Robin Cooke (later Lord Cooke of Thorndon). 46 They were aimed at practitioners as well as students. 47 The notes were frequently lengthier than the student summaries that had featured previously (although the 1,000-or 1,500-word limit would later again become the standard), and fewer in number (11 in each issue in 1955) than in the earlier period. The notes/comments were fully attributed, whereas the students' notes had merely borne their authors' initials. The new rubric also allowed for responses and multiple comments on the same case. The process of producing the case notes has relied very much on the involvement of the Faculty. To begin, a web of "rapporteurs" are asked to identify important cases to the committee of note editors, who then decide which cases should be noted and who should be approached. The time for writing the notes is shortusually around a monthafter which they are scrutinised by the whole committee, which will often insist on revisions. Because time is of the essence, the bulk of the process is carried out most easily "in house", but the note editors will also often approach scholars at other universities and practitioners, including judges. 53 In addition, the committee considers carefully spontaneous submissions, both to assess the significance of the case and the value of the note. The goal is for the note to combine explanatory clarity with critical insight. Since 2015 each note includes an indication of the note-authors affiliation, by way of an "address for correspondence", irrespective of whether the author is based in Cambridge or elsewhere.
This Centenary Issue contains a review of some of the legendary notes of Tony Weir, 54 many of which were published as part of a collection. 55 Len Sealy, who served as the General Editor from 1982-88 (stepping down when he became Chair of the Faculty), recalled Weir's notes in an interview: "they were wickedly funny, often . . . there was always a splendid quip or pun or something in just about everything he wrote and the students would fall on his case notes with great glee because I think he just brought a new dimension and a bit of life into what he wrote." 56 While his notes were esteemed for their quality and humour, Tony Weir did not come close to publishing the most notes. According to Nick McBride, 57 Weir provided 31, which was more than substantial contributors such as Glanville Williams (24), Sir David Williams (26) and David Yale (26), but fewer than the remarkable contributions made by John Collier (36), Sir William Wade (39), John Thornely (41), Len Sealy (53), John Hall (54) and Tony Jolowicz (57). However, at least during the first century of the Journal, the master of the case note numerically was John Spencer who produced a massive 88 case notes. Broadly concerned with crime, tort and human rights, Spencer frequently explained points of equivalent comparative law and sometimes even noted decisions of the courts in France and the Netherlands. 58 As with Weir, John Spencer's notes were highly regarded both for their wit and incisiveness, 59 and frequently drew the reader in through references to popular culture, such as the Daily Mirror's cartoon, Andy Capp. 60 As with Weir, many of them (in fact, 68) came to be separately published as Noted, But Not Invariably Approved. 61 Introducing the collection, Catherine Barnard referred to them as "a master class in the incisive, engaging note". 62 The case-note section has long formed an essential part of the Journal, and the notes themselves have frequently proved hugely influential. From the time the Journal became a Faculty one, they were cited in the courts.
A few examples from the highest level should provide sufficient evidence.
In 1964, Jack Hamson's comment on the first instance decision in Rookes v Barnard was cited approvingly by Lord Devlin in the House of Lords. 63 In 1975, Colin Turpin's note on a decision of the Appellate Division of the Supreme Court of South Africa was referred to in DPP v Lynch holding a defence of duress was open to a person accused as a principal in the second degree (aider and abettor) to a charge of murder. 64 In 1994, in R. v Kingston, 65 concerning involuntary intoxication, Lord Mustill noted that the Court of Appeal's decision had been criticised by academics including by John Spencer who had called the decision "dangerous" and their Lordships allowed the appeal. 66 In 1995, in Spring v Guardian Assurance plc., 67 when considering whether a writer of a reference owed a duty of care to the person being refereed, both Lord Slynn and Lord Woolf referred to Tony Weir's note in which he argued the Court of s18 [2021] The Cambridge Law Journal Appeal had been wrong to conclude that such a duty was precluded by the law of defamationindeed, Lord Woolf said he thought the article "of considerable benefit". 68 In 2009, in Gray v Thames Trains Ltd., Lord Hoffmann, when considering the doctrine of illegality, quoted from a note by Stathis Banakas, 69 written in 1985 while he was a doctoral student in Cambridge. 70 In 2016, in Cox v Ministry of Justice, 71 affirming Ministry of Justice vicariously liable for the injury caused to one of its officers by the negligence of a prisoner, Lord Reed J.S.C. (with whom all other members of the court agreed) cited John Bell's case note on the Christian Brothers case, 72 in which Bell systematically dissected Lord Phillips's five-factor analysis of vicarious liability. 73 Adopting Bell's reasoning that vicarious liability in tort had been effectively equated to a notion of enterprise liability, Lord Reed approved his summary explanation as to why the court had found the Christian Brothers liable. 74 The following year, in Darnley v Croydon Health Services NHS Trust, 75 Lord Lloyd Jones J.S.C. (with whom all his colleagues agreed) acknowledged the great assistance he had received from a note on the Court of Appeal decision by James Goudkamp which critiqued that decision as eliding the issue of whether there had been a breach of a duty of care with the distinct question of whether there existed a duty. 76 More recently, in Vauxhall Motors Ltd. v Manchester Ship Canal Co. Ltd., concerning forfeiture, Lady Arden referred to Peter Turner's "valuable case-note" on the decision of the Court of Appeal. 77 Finally, in Re Finucane, 78 Lord Carnwath sought to respond to criticisms, made in a case note by Joanna Bell, of observations he had made in his speech in an earlier case. 79 Clearly, at least some of the highest members of the judiciary have been reading the case and comment section of the Journal. C.L.J. s19 The Past, Present and Future of the Cambridge Law Journal

B. Articles
While Jack Hamson remained editor of the Journal (that is, until 1973), 80 the great bulk of the articles initially came from members of the Faculty of Law, or visitors or guest lecturers. The 1968 Journal, for example, contained articles by John Collier, Mickey Dias, R.N. Gooderson, Tony Jolowicz and Tom Hadden (later professor at Queens University, Belfast, but who was then a fellow at Emmanuel College), 81 as well as guest lectures by Sir Jocelyn Simon that had been given to Trinity Hall Law Society, Sanford Kadish (of University of California, Berkeley) based on a lecture given to the Faculty while a visiting fellow and Bernard Livesey (describing himself as "BA, LLB Peterhouse"). Submissions were certainly subject to significant editorial input by Hamson, as a footnote to Jocelyn Simon's essay explains. Nevertheless, the Journal was far from closed to outside submissions. In fact, the piece by Bernard Livesey was just such an offering: Livesey was not a fellow, nor even a "weekender", but a young barrister who had been incensed by a decision of the House of Lords and wished to express his criticisms. As he recalls, on receiving the submission, Jack Hamson invited him to visit and suggested some typographical corrections. 82 Similarly, John Baker recollects that he was still at University College, London when, in 1969, the Journal published his "Counsellors and Barristers -An Historical Study". 83 While the material published in the Journal was in this period dominated by the output of the Cambridge Faculty of Law, this would not have seemed odd or problematic. The reputational incentives for Faculty to publish elsewhere were fewer than they have become and there was a sense of collegiality in providing good copy to support the Journal.
The dominance of local authors in the articles section of the Journal changes most noticeably from the 1970s, as the Journal became a venue-of-choice for submissions from all quarters. A practice, perceptible but not rigorously adhered to, developed that authors from outside Cambridge should identify their institutional affiliation by way of an "asterisk" after their attribution (while it was assumed to be unnecessary for those associated with the university to disclose that fact). The 1975 volume contained two articles from Cambridge authors (John Spencer and Tony Jolowicz), with five from scholars elsewhere. 84   [2021] The Cambridge Law Journal alongside three pieces from Cambridge (by Phillip Allott, Kurt Lipstein and Glanville Williams), there were seven pieces from non-Cambridge authors. 85 Although the precise details of the trajectory are unclear, it is evident that the Journal started gradually to receive (and accept) an increasing number of submissions from outside, associated both with the growth of law faculties in universities and, from the end of the 1980s, a heightened emphasis on publication in reputable journals of which the Journal had become an example (in part because of the excellent content provided by the Faculty over the decades). 86 In 1995, the practice of identifying the institutional affiliation of authors, by way of an asterisk, was extended to even Cambridge-based authors. This may be thought to symbolise recognition that although the Journal was published "for" the Faculty it was in no sense a vehicle for dissemination of the work "of" Faculty members: it operated fully as a learned journal that was open to and would treat equally submissions from any author.
Given the increase in submissions, in 1985 it was decided that the Journal should be published three times a year and the editorial process became increasingly regularised. Under the editorship of Colin Turpin, it was deemed desirable to add a subeditor in the person of Christopher Forsyth (1991-95), who was given exclusive purview over a new "shorter articles" section when it was introduced in March 1994. 87 The position of "subeditor" was abandoned when Michael Prichard, retired and thus with fewer work commitments, took over the editorship from 1996 to 2002 (though the "shorter articles" section remains in place).
By the 1990s (and very possibly earlier), it was normal for pieces regarded as potentially publishable to be sent for review. Blind review by two referees became the norm (as it now is with most learned journals) under the editorships of David Ibbetson (2003-09) and John Bell (2010-19). 88 1 (announcement). The shorter articles were to be up to 4,000 words in length and they were subject to peer review equivalent to that applied to longer articles. Apparently, the idea was that the additional length was thought desirable in some instances because the 1,000 word limit on case notes was too constraining. The format was initially very popular, and the Journal included nine such articles in both 1994 and 1995. Although the word limit increased to 5,000 words in 2011, the number of shorter articles has diminished. when the Journal adopted the ScholarOne system of electronic management of submissions and the refereeing process. There remainedand still remainsa generosity on the part of Cambridge Faculty to support the Journal by submitting their work to it. Today, the Journal is proud to publish the works of our Cambridge colleagues, but they pass through similarly rigorous processes (being subject to blind peer review by two externals); and we are delighted that the Journal remains a title in which our colleagues from other Faculties in the UK as well as the rest of the world are keen to have their writings exhibited.
In 2019, on the retirement of John Bell after a lengthy stint as editor, it was recognised that the job was too onerous for a single person, and thereafter the Journal has had a team of three General Editors (of which I am designated gradiosely "Editor-in-Chief"). In 2020, the Journal received around 250 submissions, sent around 50 articles for review and ultimately published sixteen articles. Rigorous processes for review are absolutely necessary for a generalist journal such as ours, given the growth in legal specialism since the 1990s. Although the core material for the Journal remains the staples of private and public law (tort, contract, equity, restitution, property, criminal law, constitutional law, human rights, administrative law and EU law), as well as legal history, legal philosophy and comparative law, there remains room in a generalist journal for accessible work on company law, environmental law, intellectual property, family law, medical law, banking law, disability law and so on. Moreover, while the Journal recognises the importance of doctrinal legal scholarship, the editors are conscious that important research questions can only properly be answered using appropriate methodologies.
Like the case notes, the articles in the Journal have proved amazingly influential. Most of this Centenary Issue is given over to reflections by six current members of the

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[2021] The Cambridge Law Journal "The Basis of Legal Sovereignty". 89 This has been described by various scholars as a "famous and very influential article", 90 "one of his most important and enduring contributions to constitutional law", 91 as well as "one of the most frequently cited [articles] in British constitutional law and theory". 92 According to Lord Irvine of Lairg, the article "remains for many the classic exposition of sovereignty theory in the British context". 93 Likewise, Mark Elliott describes the piece as providing "the conventional", 94 "orthodox" or "classic" doctrine of parliamentary sovereignty in the British legal system. 95 While its status as orthodox or classic hints too at widespread critique and development of alternative or unorthodox views, Wade's account has, of course, been referred to with approval in a number of judicial decisions. 96 Another important intervention from the Journaland one, notably, by a scholar not directly linked to the University of Cambridgewas Andrew Ashworth's article entitled "The Doctrine of Provocation". 97 At the time of publication Ashworth was a Senior Lecturer at the University of Manchester, but he would go on to hold the post of Vinerian Professor of Civil Law at Oxford (1997)(1998)(1999)(2000)(2001)(2002)(2003)(2004)(2005)(2006)(2007)(2008)(2009)(2010)(2011)(2012)(2013). This exposition of the legal and philosophical underpinnings on the partial defence of provocation to a charge of murder was described by leaders in the field variously as "classic", "famous", "justly celebrated" and "acclaimed". 98 In R. v Acott, where the issue before the Lords was whether the judge should have left the question of provocation to be decided by the jury even where there was no evidence of a "provoking" event, Lord Steyn quoted Professor Ashworth's "helpful" description of "the core features of the modern law of provocation". 99 He drew from the description that there needed to be some evidence of the nature of the provocation, otherwise it would be impossible for the jury to determine whether there was a reasonable justification for feeling aggrieved and thus losing control ("enough to make a reasonable man do as he did").
One aspect of the article that has proved particularly controversial is how far the individual characteristics of a defendant were relevant to a consideration of the reasonableness of the reaction. Ashworth claimed that "[t]he proper distinction . . . is that individual peculiarities which bear on the gravity of the provocation should be taken into account, whereas individual peculiarities bearing on the accused's level of self-control should not". 100 It has been suggested by some that this analysis underpinned that adopted two years later by the House of Lords in R. v Camplin. 101 Indeed Lord Goff later observed that "the similarity between the approach recommended by Professor Ashworth, and that adopted by the House of Lords . . . is so great that it is difficult to believe that his article did not, at least indirectly, influence the reasoning and the conclusion in that case". 102 While others, including Lord Bingham and Lord Hoffmann, have contested this, 103 there is no doubt that Ashworth's article informed the Privy Council ruling on appeal from Hong Kong in Luc Thiet Thuan v The Queen, 104 where Lord Goff reported that their Lordships wished to acknowledge their indebtedness to the article. However, in R. v Smith (Morgan), where the House of Lords split (3:2), the majority, while citing the article and recognising its influence, 105 rejected its analysis. 106 Finally, the enlarged board of the Privy Council in Attorney General for Jersey v Holley, reiterated the Ashworth analysis, though without citing the article specifically (while the minority did so before rejecting it). 107 Ashworth's article has also been cited by the Supreme Court of Canada and the High Court of Australia, though the latter adopting a different approach to that in the article. 108