Legal Studies Research Paper Series Vol. 4, No. 5

The Faculty has published Volume 4 Number 5 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Nicola Padfield: An Entente Cordiale in Sentencing? (11/2013)

This is a short series of articles providing a description of the French system of sentencing (including the implementation of sentences). The series is designed not only to inform readers about the nature of French sentencing law (a subject extraordinarily under-studied this side of the Channel) but also to be a provocation to those who are considering ways in which the English and Welsh system should be reformed.

The series concludes with a plea to policy makers to stop looking to America for solutions – there is a wide ocean between the American and the British political context of criminal justice and arguably a rather narrower channel between France and England.

Brian Sloan: Informal Care and Private Law: Governance or a Failure Thereof? (16/2013)

The provision of care for elderly and disabled people is an issue of enormous public importance, particularly in the context of an ageing population. There is currently much discussion, in the light of the UK Government's attempts to implement an approximation of the Dilnot Commission's recommendations (Commission on Funding of Care and Support, Fairer Care Funding (2011)), about the provision of formal care for those who require it and how it should be funded. But care recipients, and ultimately wider society, continue to rely heavily on care provided informally (i.e., in the absence of a legal duty) in the home. Many of the people providing such care suffer significant financial and health-related disadvantages as a result of their responsibilities, though in principle some are able to seek (in addition to limited support from the state) a form of 'compensation' from their care recipients via a private law claim.

This paper asks whether private law remedies for carers, such as those remedies identified and to an extent advocated in the author's recent monograph, Informal Carers and Private Law (Oxford, Hart Publishing, 2013), are inevitably related to an inadequacy of state support for carers and care recipients and a failure properly to grapple with the issue of care on the part of Government and society. It evaluates the alternative proposition that such remedies are normatively appropriate irrespective of the level of state provision of care or state support for informal carers.

Jason N. E. Varuhas: The Reformation of English Administrative Law? 'Rights', Rhetoric and Reality (17/2013)

This article examines and responds to a doctrinal claim, made by an increasing number of commentators, that English administrative law is in the midst of a "reformation" or "reinvention", with the notion of "rights" at the heart of this radical recalibration. The article is critical of such claims on several grounds. First, these claims are steeped in ambiguity, such that the nature and doctrinal scope of the claimed metamorphosis are not clear. Second, these commentators have not undertaken the sort of detailed doctrinal analysis which is required to make credible claims about the development of the law, meaning their broad claims have a strong propensity to mislead, and pass over the nuances and complexities of doctrine. An analysis of significant features of doctrine tends to tell against a wholesale recalibration of administrative law around rights, and indicates an increasingly pluralistic rather than unitary legal order. Third, despite the centrality of the idea of "rights" to their claims, these commentators do not squarely address what they mean by "rights", in general using the term indiscriminately, and thereby plunging their claims into uncertainty. The article demonstrates the importance of conceptual clarity in analyzing "rights"-based developments through a doctrinal analysis of "rights" in administrative law, conducted through the prism of W.N. Hohfeld's analytical scheme.

Martin Dixon: Shining a Light on Easements (19/2013)

The paper considers the Law Commission's report on the law relating to easements of light. It considers the proposals concerning prescription, remedies and new forms of dispute resolution. The recommendations are analysed and some objections are discussed, especially in the context of remedies.

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