Legal Studies Research Paper Series Vol. 6, No. 3

The Faculty has published the third edition of 2015, Volume 6 Number 3 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

David Fox: Monetary Obligations and the Fragmentation of the Sterling Monetary Union (71/2014)

This chapter explains the development during the nineteenth century of the legal structures behind the international monetary union between the United Kingdom, Australia and New Zealand. It thus illustrates the operation of one part of the international gold standard in regulating currency values between three trading and investment partners in the British Empire. Through a study of litigated disputes, it shows the fragmentation of the monetary union during early 1930s and the gradual development of the monetary sovereignty in Australia and New Zealand.

Matthew H. Kramer: Alan Dershowitz's Torture-Warrant Proposal: A Critique (2/2015)

One major set of issues pertaining to the legal regulation of torture is centered on the question whether the use of torture should ever be legally authorized ex ante. Though punitive torture is no longer officially practiced in any liberal democracy, the matter of interrogational torture is still a live point of contention. One of the most widely discussed and frequently condemned proposals in recent years, floated chiefly by Alan Dershowitz, has submitted that certain torturous techniques of interrogation should indeed be legally authorized - provided that warrants for the plying of such techniques are sought and obtained beforehand by the relevant officials. Dershowitz’s torture-warrant proposal has been trenchantly criticized by quite a few of the other philosophers and legal theorists who write on these matters, but much remains to be said. The present paper undertakes a systematic demolition of Dershowitz's arguments.

Visa AJ Kurki : Why Things Can Hold Rights: Reconceptualizing the Legal Person (7/2015)

This essay takes as its starting point a recent judgment by the New York State Supreme Court Court, Appellate Division, which denied habeas corpus from the chimpanzee Tommy. The conclusion of the judgment is not challenged, but rather its underlying premise: that legal personhood could be straightforwardly equated with right-holding and/or duty-bearing. The Tommy case was not about granting the first legal right to the chimpanzee, because it already holds numerous rights. Neither can it be claimed that legal personhood concerns the capacity to be a party in legal relations, as nonpersons participate in Hohfeldian legal relations, too. The essay argues that legal personhood should rather be understood as being encompassed in the specific legal institutions that distinguish legal persons from nonpersons.

Marc T. Moore: The (Neglected) Value of Board Accountability in Corporate Governance (9/2015)

The concept of board accountability is central to literature and debates on corporate governance, not least in the United Kingdom and United States. However, as a social phenomenon it is frequently misunderstood, particularly by corporate lawyers. This article identifies two particularly common misunderstandings of the term within a legal context, where it has tended to be viewed (erroneously): first, as a mitigating counter-pressure to directorial decisional authority; and, second, as an inherent structural corollary to shareholder decisional empowerment – or, vice versa – board decisional disempowerment. The article takes issue with both of these perspectives, and – in response – develops a more nuanced alternative understanding of board accountability in corporate governance, derived from sociological and institutional-economic insights into the nature of accountability as a discrete social-relational practice. Essentially, accountability is understood here as the compelled provision by an authorised decision-maker (to her recognised decision-beneficiary) of normatively cognisable reasons in support of her discretionary decisions and/or actions, which has the ultimate effect of legitimising – and, in turn, sustaining – relational power imbalance between private decisional parties. By recognising these broader dimensions of board accountability as a social phenomenon, corporate lawyers – it is submitted – will be better positioned in future to grapple with the full institutional complexity of corporate governance as a subject of legal enquiry.

Simon Deakin et al: Are Litigation and Collective Bargaining Complements or Substitutes for Achieving Gender Equality? A Study of the British Equal Pay Act (11/2015)

We present a socio-legal case study of the recent equal pay litigation wave in Britain, which saw an unprecedented increase in the number of claims, triggered in part by the entry of no-win, no-fee law firms into this part of the legal services market. Although the rise in litigation led to greater adversarialism in pay bargaining, litigation and collective bargaining mostly operated as complementary mechanisms in advancing an equality agenda. Litigation may be a more potent agent for social change than some recent analyses, which stress the limits of the law in the face of organisational pressures to canalise and diffuse human rights, have suggested.

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