The Faculty has published second edition of 2015, Volume 6 Number 2 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.
This issue includes the following articles:
David Fox: Case Study: The Case of Mixt Monies (70/2014)
This chapter considers the intellectual pedigree of the decision of the English Privy Council in Gilbert v Brett (1604), commonly known as the Case of Mixt Monies. It is the only reported common law decision which considers squarely how the debasement of a commodity currency should affect the performance of a monetary obligation. The chapter builds on the author’s previous published work on the Case by considering how the works of the European ius commune and English canon law which were manipulated in the Case in order to justify a common law rule of monetary nominalism.
Matthew H. Kramer: Shakespeare, Moral Judgments, and Moral Realism (1/2015)
Among the many areas of scholarship that can be enriched through an engagement with Shakespeare’s plays, moral philosophy is a particularly fruitful territory. In the present essay, I draw on a couple of Shakespearean tragedies to come to grips with a challenge that has sometimes been mounted against moral realism. Moral realism I take to be the thesis that morality (or ethics more broadly) is objective along a number of different ontological, epistemic, and semantic dimensions. Here the challenge to be countered - with assistance from Shakespeare - is focused on the foremost respect in which morality is semantically objective. That is, some opponents of moral realism have sought to deny that moral judgments are ever truth-apt, by contending that such judgments are inherently possessed of motivational force. This essay will examine their reasoning, with the aim of showing that (insofar as the reasoning is sound) it can readily be accommodated by moral realism.
Sahib Singh: Narrative and Theory: Formalism's Recurrent Return (5/2015)
This article critically examines the re-entrenchment of formalism in European international legal thought. It does so by looking at how such a theory (and ideas more generally) may come to seem natural and persuasive within the discipline. Narrative analysis may be used as a critical method to look at how theories persuade, how they are 'sold' and how they produce certain mentalities. Formalism generally (and specifically, source formalism) is broken down as part method, part aesthetics, and part ideology (Section I). The theory is also critiqued for its concern with coherence and determinacy, its own imminent intellectual necessity, and with disciplinary progress. These narrative tactics are exposed as geared towards establishing theoretical dominance within the discipline (and in relation to other theories) (Section II). Specific variants of formalism also tend to eschew any analysis of the multitude of historical conditions and struggles from and for which it emerged. The contemporary European stance emerges against a background of anxiety over disciplinary autonomy and theories that have become dominant in US legal thought. It is a theory of resistance that often slips into essentializing the discipline (Section III). Finally, a specific thesis for formalism in the sources of international law is critiqued as one that cannot work on its own intellectual and theoretical terms. Source formalism (as argued through a Hartian positivist thesis and Wittgenstein) cannot fulfill the relative determinacy it seeks, nor (and more importantly) is such a determinacy required for the legitimacy and normativity of international law. This theory of formalism, whilst operating through ideas that are easily accepted in legal circles, is one that can only sustain itself through intellectual vagueness and contradictions. Five such 'intellectual arrests' are worked through (Section IV). Despite its popularity, there is no necessity for such a theory in contemporary legal thought. Whilst this article is a critique of a specific variant of formalism, it is also a demonstration of how certain dominant theories can constrain and shape our imagination in a multitude of ways. The ploys of marketing an idea remain, after all, predominantly liberal.
Jeffrey Skopek: Reasonable Expectations of Anonymity (6/2015)
The Supreme Court has concluded that the Fourth Amendment's protections do not apply to information that has been exposed to the public. This conclusion is deeply flawed and derives from the mistaken conflation of anonymity and privacy. Although anonymity and privacy are similar in that both maintain the secrecy of personal information, they differ in a fundamental and legally relevant way: privacy hides the information, whereas anonymity hides what makes it personal. Understanding this difference reveals compelling substantive and formal reasons for interpreting the Fourth Amendment to protect not only reasonable expectations of privacy, but also "reasonable expectations of anonymity." Further, the incorporation of this new analytic concept into Fourth Amendment jurisprudence yields significant value: first, by identifying otherwise-unrecognizable ways in which new techniques of big data implicate the Constitution, and second, by delivering on the unfulfilled promise of the Supreme Court's teaching that the Fourth Amendment "protects people, not places."
Marc Moore: Corporate Governance, Pay Equity, and the Limitations of Agency Theory (8/2015)
It is well known that recent decades have seen an explosion in levels of senior executive remuneration in public companies, both in absolute terms and in relative terms to ordinary worker pay. However, a conspicuous corresponding trend over recent years has been the development of a range of countervailing regulatory tools designed to mitigate this disparity within various national environments. These include regulatory pay ratio caps, bonus bans, and mandatory pay ratio disclosures. Notwithstanding these salient developments, prevailing legal and economic debates on senior executive and worker pay remain rooted in the dominant principal-agent paradigm of corporate governance, which consistently disputes the relevance of equitable or distributive fairness concerns to the essentially functional challenge of determining effective agent incentives. In this article, I take issue with the orthodox principal-agent perspective on pay equity, by demonstrating the centrality of equitable concerns to effective agent-incentive design, both at senior executive and ordinary worker levels.
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