Legal Studies Research Paper Series Vol. 4, No. 10

The Faculty has published Volume 4 Number 10 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Sahib Singh: Non-Proliferation Law and Countermeasures (21/2013)

This paper examines a central question concerning the international law of countermeasures: what is the extent to which non-proliferation law, and the special obligations and institutional mechanisms created by the governing treaties, enables, limits or otherwise modifies the right to resort to countermeasures under general international law?

This paper explores this question through the examination of non-proliferation law with regard to three central sub-questions: (a) who has standing to take countermeasures, due to the particularities of non-proliferation obligations; (b) when can countermeasures be taken, given the prevalence of institutional mechanisms and special rules in non-proliferation law; (c) what countermeasures may be taken given the particular practicalities of the WMDs and non-proliferation law.

The paper seeks to provide a pragmatic and doctrinal view of the way in which countermeasures may be taken, in accordance with the law, in the diverse area of non-proliferation law.

Neil Andrews: Consultation with Non-Lawyers is Not Privileged at Common Law (37/2013)

English law has clarified the scope of legal advice privilege ('attorney-client privilege') and confirmed that only lawyers and not, for example, accountants, can give such privileged legal advice and support. There are sound reasons for sustaining this clear rule. First, confining this privilege to qualified lawyers avoids uncertainty concerning borderline claims for privilege concerning the 'legal input' provided to clients by non-lawyers. Secondly, the proposal that non-lawyers should be capable of giving advice protected by legal advice privilege would require legislative consideration. Judicial decision-making is an inappropriate instrument to use when making such finely adjusted legal changes. Thirdly, judicial intervention would be inappropriate because the UK Parliament in modern times has chosen not to extend the privilege to non-lawyer professionals whose advice might contain pure legal advice, including non-lawyer tax advisors.

Sarah Nouwen: 'As You Set Out for Ithaka': Practical, Epistemological, Ethical and Existential Questions About Socio-Legal Empirical Research in Conflict (43/2013)

This is the story behind another story. Inspired by the anthropological practice of reflexivity, it traces some practical, epistemological, ethical and existential questions behind a book based on empirical socio-legal research into international criminal law in situations of conflict. The challenges involved in such research are at times impossible to overcome. Indeed, the challenges may be such that the researcher will never be able to answer her original question fully and confidently. However, challenges can be findings in themselves. They may reveal insights into the role of law in a society, the limitations of vocabularies, the overexposure of international criminal law and inequalities in global knowledge production. Rather than merely obstructing research into a topical issue, challenges may shift the researcher’s attention to other, more fundamental, questions. Nonetheless, understanding challenges as findings does not resolve the existential problem of the researcher’s possible complicity in maintaining the very challenges that she analyses and perhaps ambitiously tries to overcome.

Jason N. E. Varuhas: The Concept of 'Vindication' in the Law of Torts: Rights, Interests and Damages (45/2013)

This article seeks to identify the nature of vindication as a distinctive function within the English law of torts. It argues that a specific conception of vindication explains fundamental features of the law of torts, variations in the structure of different torts, as well as variations in the approach to damages from one tort to another, which are not explicable by reference to well-documented functions of torts, such as compensation and punishment. According to this conception vindication entails attesting to, affirming and reinforcing the importance of those interests that are the subject of the law’s protection and their inherent value, and by association the importance of the overlying legal rights. The emphasis on vindication varies across torts; the torts actionable per se are paradigm examples of torts which have vindication as their primary function.

The focus of this article is on how the over-arching vindicatory function of a tort shapes the approach to compensatory damages. It is submitted that for torts which have vindication as their primary function damages are available for the wrongful interference with the interest protected by the tort, in and of itself. Such damages compensate for a damage that is “normative” in nature, are assessed objectively, and are awarded notwithstanding whether the claimant suffers any negative psychological, physical, emotional or economic effects in consequence of the wrong. The article goes on to analyse the relationship between vindication and non-compensatory damages, including the novel head of “vindicatory damages”.

Matthew H. Kramer: Legal Responses to Consensual Sexuality between Adults: Through and Beyond the Harm Principle (46/2013)

This paper, written for a forthcoming collection of essays on H.L.A. Hart and responsibility, revisits some of Hart's arguments in his 1963 book "Law, Liberty, and Morality." It seeks to reinforce and extend Hart's liberal positions by offering lines of reasoning that are quite different from his, and by highlighting the inadequacy of John Stuart Mill's harm principle for coming to grips with contemporary issues such as the introduction of same-sex marriage.

Matthew Dyson: Civil Law Responses to Criminal Judgments in England and Spain (47/2013)

The interfaces between tort and crime can have a profound impact on legal reasoning and outcomes. Even though these interfaces have not received much academic attention, courts and legislators have been forced to deal with the boundary issues litigants raise. A particularly fruitful starting point for academic work is to consider how the two areas of law have developed procedural rules to coordinate their responses to a single set of events. This article examines one such example: the extent to which the civil law uses prior criminal law determinations in two European systems, namely England and Spain. England’s scarcity of theoretical approaches has underpinned a steady development of case jurisprudence; Spanish law complements this story by showing how an academically inspired legislative regime can still evolve as a result of its own internal pressures. Understanding how the civil law has developed methods to tap into the work of the criminal courts is a useful step in building a fuller picture of how tort and crime interact and what effect those interactions have in the wider world.

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