Legal Studies Research Paper Series Vol. 6, No. 5

The Faculty has published the third edition of 2014, Volume 6 Number 5 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

David Erdos: Fundamentally Off Balance: European Union Data Protection Law and Media Expression (42/2014)

The European Data Protection Directive 95/46/EC requires all European Economic Area (EEA) jurisdictions to provide an equivalent regime protecting the privacy and other fundamental rights and freedoms of natural persons in relation to personal data processing, whilst also shielding media expression from the default substantive requirements as necessary to ensure a balance between fundamental rights. Through a comprehensive coding of the derogations set out in each jurisdiction?s data protection laws, this paper provides the first systematic analysis whether this has in fact been achieved. It is demonstrated that there is a total lack of even minimal harmonization in this area, with many laws providing for patently unbalanced results especially as regards the publication of sensitive information, including criminal convictions and political opinion, and the collection of information without notice direct from the data subject. This reality radically undermines European data protection?s twin purposes of ensuring the free flow of personal data and protecting fundamental rights, an outcome which remains unaddressed by the current proposed new Data Protection Regulation. Practical suggestions are made to ameliorate these troubling inconsistencies within the current process of reform.

Matthew Kramer: Paternalism, Perfectionism, and Public Goods (13/2015)

Jonathan Quongʼs "Liberalism without Perfection" is a highly impressive defense of the Rawlsian thesis that governments are morally obligated to remain neutral among all reasonable conceptions of the good. Quong pits his neutralism against the sundry varieties of liberal perfectionism, whose proponents all reject the Rawlsian thesis. In the present article, I will challenge some of Quongʼs claims about the paternalism of the subsidies that are recommended by most liberal perfectionists. Although I am wary of many aspects of the doctrines that have been varyingly propounded by perfectionists in recent decades, Quongʼs anti-perfectionist strictures are generalizable mutatis mutandis to virtually all perfectionist doctrines -- including the aspirational-perfectionist doctrines which I elsewhere champion. Hence, notwithstanding my doubts about the perfectionist theories that have abounded heretofore, this articleʼs parrying of the charges of paternalism leveled by Quong will help to pave the way for my advocacy of a very different kind of perfectionism.

Brian Cheffins: The Rise of Corporate Governance in the U.K.: When and Why (18/2015)

While issues that prompt corporate governance responses are endemic to the corporate form, the term "corporate governance" only began to feature with any regularity in discussions of public companies in Britain as the 1990s got underway. It is well known that work done by the Committee on the Financial Aspects of Corporate Governance, known as the Cadbury Committee, played a major role in fostering the rise of corporate governance in the U.K. at that point. This paper explains why corporate governance did not move into the spotlight in Britain in the 1970s, a development that might have been anticipated given that corporate governance was arriving on the scene in the United States then. The paper also identifies trends that likely would have ensured that corporate governance would have risen to prominence in Britain in the early 1990s in the absence of the Cadbury Committee?s deliberations.

Mark Elliott: Beyond the European Convention: Human Rights and the Common Law (19/2015)

Since its entry into force in 2000, the Human Rights Act 1998 has become largely synonymous with human-rights adjudication in the UK. In particular, the notion of common-law constitutional rights was largely eclipsed by the new legislation. However, in recent years, against the background of political uncertainty concerning the future of the Act, the UK Supreme Court has begun to place renewed emphasis upon the common law as a source of fundamental rights and values. In the light of those phenomena, this article examines the potential of the common law as a vehicle for the enforcement of human rights. In particular, it compares the capacity of the common law with that of the Act by reference to three vectors by reference to which the nature of a judicial system of human-rights protection may be characterised. The three vectors respectively concern the normative reach of the system, the rigour with which it equips courts to uphold rights, and the degree of constitutional resilience that rights exhibit in the face of adverse legislative or administrative action. It is argued that these three aspects of human-rights adjudication sit in relationship with one another, and that it is only by considering the ways in which they interact that the nature and extent of the common law?s potential can be fully calibrated and assessed.

Nicholas McBride: Michael v Chief Constable of South Wales Police [2015] UKSC 2 (21/2015)

Michael v Chief Constable of South Wales Police is arguably the third most important case - after Donoghue v Stevenson (1932) and Hedley Byrne v Heller & Partners (1964) - on the English law of negligence to be decided by the UK's highest court. This short paper summarises the facts and the decision of the UKSC in Michael, and discusses the implications of that decision for how cases will be decided in future where a public body is sued in negligence for failing to save someone from harm.

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