The Faculty has published Volume 6 Number 7 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.
This issue includes the following articles:
Simon Deakin et al: Legal Institutionalism: Capitalism and the Constitutive Role of Law (26/2015)
Social scientists have paid insufficient attention to the role of law in constituting the economic institutions of capitalism. Part of this neglect emanates from inadequate conceptions of the nature of law itself. Spontaneous conceptions of law and property rights that downplay the role of the state are criticized here, because they typically assume relatively small numbers of agents and underplay the complexity and uncertainty in developed capitalist systems. In developed capitalist economies, law is sustained through interaction between private agents, courts and the legislative apparatus. Law is also a key institution for overcoming contracting uncertainties. It is furthermore a part of the power structure of society, and a major means by which power is exercised. This argument is illustrated by considering institutions such as property and the firm. Complex systems of law have played a crucial role in capitalist development and are also vital for developing economies.
Mark Elliott: From Bifurcation to Calibration: Twin-Track Deference and the Culture of Justification (27/2015)
Questions about substantive judicial review - its legitimacy, its appropriate intensity, its proper limits - often appear to be as intractable as they are beguiling. The appeal - but also the complexity - of the debate lies, at least in part, in the fact that it is animated by disagreement about underlying constitutional matters, including the rule of law, the separation of powers, and the nature, status, extent, legitimacy and interaction of legislative, administrative and judicial authority. In this chapter, I am concerned with substantive review in the narrower of the two senses in which the term is used in this book: that is, review of the decision itself, as distinct from the process by which the decision was taken, on grounds involving some degree of scrutiny of the merits. More particularly, the aim is to explore the relationship between the constitutional matters mentioned above and the front-line doctrinal tools, such as the Wednesbury and proportionality tests, that are associated with substantive review. I will advocate an approach that, while acknowledging the valuable role that doctrinal tools are capable of playing in the structuring of law and legal reasoning, insists upon such tools’ subservience to the underlying concerns that ought to be in the driving seat. I will also argue against approaches that promise neat, bright-line distinctions but which do so by masking underlying normative or constitutional complexity through the application of a formalist doctrinal veneer.
Jason N. E. Varuhas : Against Unification (28/2015)
It is increasingly common for commentators to argue that common law judicial review and human rights law are merging to form a unified field of public law, characterised by common functions, norms, concepts and methods, and/or that the two fields ought to be so unified. Such commentators typically favour unification of public law as a whole around human rights and other constitutional values, and proportionality method. The idea of unification increasingly finds support among the higher judiciary, particularly in decisions concerning substantive review at common law.
This paper argues (i) that common law review and the law under the Human Rights Act of 1998 are fundamentally distinct fields of law which perform radically different functions, and (ii) that the fields ought not to be synthesised. Consideration of fundamental doctrinal features of each field shows that common law review is concerned principally with ensuring public power is exercised properly and for the common good, whereas human rights law is principally concerned to protect and vindicate basic individual rights and interests. Given these different functions it is only natural that the two fields would be characterised by different norms, concepts and methods. Further, it is difficult to see how a public-regarding field and an individual-regarding field could sensibly be unified, nor why unification is desirable: each field performs distinctively valuable public law functions, so that something of real value would be lost if the two fields were reduced to a single function. The paper considers normative arguments for and against unification, and critically evaluates two models of unification favoured by commentators: constitutionalisation and privatisation.
David Erdos: European Data Protection Regulation and the New Media Internet: Mind the Implementation Gaps (30/2015)
An extensive survey of European Economic Area (EEA) Data Protection Authorities (DPAs) explored the interface between the EU Data Protection Directive and the publication activities of seven types of ‘new media’ internet actor. It is demonstrated that these important regulators have generally adopted an expansive interpretative approach, holding data protection norms to be strongly engaged across this landscape. In contrast, implementation has been weak. Except for street mapping services, each type of new media actor had only faced relevant enforcement action from a minority of DPAs. DPA financial resourcing was also very limited. In addition, the reported enforcement efforts of the DPAs were far from harmonized. Extensive enforcement correlated with a particularly stringent interpretative approach but surprisingly not with better financial resourcing. The proposed General Data Protection Regulation is only likely to make a modest contribution to resolving these serious problems.
Nora Ni Loideain: Judicial Review of Mass Metadata Surveillance in the Post-Snowden Era (32/2015)
Legal frameworks exist within democracies to prevent the misuse and abuse of personal data that law enforcement authorities obtain from private communication service providers. The fundamental rights to respect for private life and the protection of personal data underpin this framework within the European Union. Accordingly, the protection of the principles and safeguards required by these rights is key to ensuring that the oversight of State surveillance powers is robust and transparent. Furthermore, without the robust scrutiny of independent judicial review, the principles and safeguards guaranteed by these rights may become more illusory than real.
Following the Edward Snowden revelations, major concerns have been raised worldwide regarding the legality, necessity and proportionality standards governing these laws.
In 2014, the highest court in the EU struck down the legal framework that imposed a mandatory duty on communication service providers to undertake the mass retention of metadata for secret intelligence and law enforcement authorities across the EU. This article considers the impact of the Snowden revelations on this landmark judgment. Subsequently, the analysis explores the significance of this ruling for the future reform of EU law governing metadata surveillance and its contribution to the worldwide debate on blanket and covert monitoring in the post-Snowden era.
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