Legal Studies Research Paper Series Vol. 7, No. 11

The Faculty has published Volume 7 Number 11 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Jacob Eisler: McDonnell and Anti-Corruption's Last Stand (41/2016)

In McDonnell v. United States, the Supreme Court constrained the reach of federal anti-corruption law, declared the inevitability and even desirability of representatives aggrandizing favored constituents, and asserted patronage to be a hallmark of democracy. The unanimous decision is the latest and clearest indication that the Court will frustrate regulations that require officials to discharge their roles with disinterested neutrality.

This article demonstrates the impact of the Court’s minimalist view of integrity through political philosophy and game theory. Given the Court’s hostility to regulatory prohibition of self-interested political behavior, the final bulwark of public-minded governance is the electorate, which must use the ballot box to reject corrupt representatives. Additionally, the Court’s position erects significant obstacles for reform of campaign finance and political institutions. The article concludes that implementing civic anti-corruption requires either jurisprudential innovation or novel approaches to enforcement.

This article thereby integrates the history of modern anti-corruption law with the latest leading decision on the topic, weaves together the Court’s blackletter doctrine with its substantive politics, describes the impact of the law on democratic governance, and points the way forward for both scholarship and policy.

Matthew H. Kramer: There's Nothing Quasi About Quasi-Realism: Moral Realism as a Moral Doctrine (42/2016)

This paper seeks to clarify and defend the proposition that moral realism is best elaborated as a moral doctrine. I begin by upholding Ronald Dworkin’s anti-Archimedean critique of the error theory against some strictures by Michael Smith, and I then briefly suggest how a proponent of moral realism as a moral doctrine would respond to Smith’s defense of the Archimedeanism of expressivism. Thereafter, this paper moves to its chief endeavor. By differentiating clearly between expressivism and quasi-realism (or moral realism as a moral doctrine), the paper highlights both their distinctness and their compatibility. In so doing, it underscores the affinities between Blackburnian quasi-realism and moral realism as a moral doctrine. Finally, this paper contends ─ in line with my earlier work on these matters ─ that moral realism as a moral doctrine points to the need for some reorienting of meta-ethical enquiries rather than for the abandoning of them.

Veronika Fikfak: Protecting Human Rights in Austerity Claims in the UK (43/2016)

In many ways, writing about the economic crisis in the UK is telling a story about the past. Recently, media and scholars have been reporting that a successful economic recovery is upon us, that the double dip recession is over and that a slow but steady expansion of the UK economy is already taking place. To put it simply, the UK appears to be out of the economic crisis. Yet, although the economy has improved, the politics of the current conservative government is still very much focused on limiting social benefits and entitlements, a move that could have been explained during the economic crisis, but one that is now questionable. In this regard, although this article appears to be about the past, it is in fact about the present – it is about the effects of the economic crisis, about the government’s treatment of our most vulnerable people both during and out of a recession, and about our conception of the rule of law. The article how the adoption of a rights based approach has already changed the treatment of austerity claims in the UK. Recent constitutional developments in the UK (including the discussions about the repeal of the Human Rights Act and the adoption of a new Bill of Rights) and the danger of withdrawing from the European Convention of Human Rights make the focus on this jurisdiction especially interesting. The obvious question that arises is whether a human rights based approach is dependent on the UK being a member of the Convention. The article investigates the impact of the Human Rights Act on the current English constitutional climate and reveals the expanded potential for rights protection.

Michael Waibel: The Principle of Privity (44/2016)

In Certain German Interests in Polish Upper Silesia, the Permanent Court of International Justice (PCIJ) said: 'A treaty only creates law as between the States which are parties to it; in case of doubt, no rights can be deduced from it in favour of third States'. This is the classic statement of the privity, pacta tertiis or parties-only principle in international law. Accordingly, treaties create (enforceable) obligations and rights only for the States parties to them. The Vienna Convention on the Law of Treaties (VCLT) codified the privity principle in its Articles 34, 35, 36 and 37.

As this chapter shows, the PCIJ's axiomatic statement in Certain German Interests almost eighty years ago no longer fully reflects the effect of treaties on third parties in contemporary international law. Since then, the principle of privity of treaty has lost some its sharp edges. The rise of erga omnes obligations and objective, status-creating treaties, the conferral of rights on non-State actors and their ability to directly enforce such rights as well as the turn towards informal international law beyond the law of treaties have tempered the traditional privity rule. However, it would be premature to sound the death knell of privity of treaty. Privity remains an important structural characteristic on the inter-State plane.

Kenneth Armstrong: The Open Method of Coordination – Obstinate or Obsolete? (45/2016)

For more than two decades, the European Union has been experimenting with forms of policy coordination as a means of seeking influence in domains of policy that more typically fall within the competence and political authority of its Member States. Across economic, employment and social policies, EU institutions, structures and process have attempted to open out domestic policymaking to the influence of external actors and shared normative frameworks. These experiments in European governance acquired a common nomenclature: the ‘open method of coordination’ (OMC). This article analyses the OMC and its relationship to law, in general, and to principles of EU law in particular. The analysis first clarifies the nature and application of the technique of policy coordination in the EU. It then considers the relationship between the OMC and principles of EU law. Two groups of principles are highlighted. The first group – the principles of conferral and subsidiarity; and democratic participation, openness and transparency – reflects the distribution of political authority across multiple levels that is engaged in policy coordination processes. The second group – the principles of effective judicial protection and the protection of fundamental rights – give procedural and substantive dimensions to the rule of law. The article concludes that techniques of policy coordination are far from obsolete and have even been developed and consolidated in the ‘meta-coordination’ architecture of the ‘European Semester’. Nonetheless, the capacity of law to capture the character and effects of policy coordination is evasive, with the relationship between policy coordination and core principles of EU law often proving to be less an encounter and more an estrangement.

T. R. S. Allan: Statutory Interpretation: Why Complaints of Judicial Disobedience Make No Sense (46/2016)

We have become familiar with the complaints of ‘disobedience’ that now often follow the judicial construction and application of statutes. They are usually made by lawyers who favour a comparatively literal or ‘plain’ meaning over a more nuanced, contextual reading, where the context includes general principles of law that reflect and sustain constitutional rights and values. Reflection on the nature of legal interpretation shows why such charges of disobedience or ‘judicial amendment‘ are usually unhelpful and often misleading. Complex questions of legal and constitutional interpretation cannot responsibly be evaded by a dogmatic preference for literal or plain readings over more subtle, balanced readings. If severed from a close analysis of all the pertinent interpretative questions, a complaint of disobedience is only an intemperate expression of dissent or disagreement. The paper considers the controversial cases of Evans v Attorney General (2015) and Purdy v Director of Public Prosecutions (2009) by way of illustration.

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