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

The Faculty has published the fourth edition of 2014, Volume 5 Number 4 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: Empirical Analysis of Legal Institutions and Institutional Change: Multiple-Methods Approaches and Their Application to Corporate Governance Research (12/2014)

The claim that institutions matter for economic growth and development has so far received a more extensive theoretical treatment than an empirical or methodological one. Basing our approach on a coevolutionary conception of relations between law and the economy, we link theory to method and explore three techniques for analysing legal institutions empirically: ‘leximetric’ measurement of legal rules, time-series econometrics, and interview-based fieldwork. We argue that while robust measurement of institutions is possible, quantitative techniques have their limits, and should be combined with fieldwork in a multiple-methods approach.

David Feldman: Error of Law and the Effects of Flawed Administrative Decisions and Rules (18/2014)

Over the last half-century, English administrative law and theory have increasingly paid lip-service to three propositions. (1) All errors in the course of making a decision or rule are to be regarded as errors of law. (2) All errors of law make the decisions to which they relate null and void. (3) If a ‘decision’ is a nullity, it can have no legal effect.

Yet it would be extremely inconvenient if every error which infringed a legal requirement in the making or implementation of a rule or decision were to deprive it of legal effect. The error might be minor, or do no harm to anyone. It might not make the decision (and hereafter, unless the context otherwise requires, ‘decision’ includes ‘rule’) inappropriate or deprive it of social and political legitimacy. The damage caused by refusing all legal effect to it might then be out of all proportion to the seriousness of the error. However, the three propositions make it difficult to provide a principled explanation or justification for those outcomes, and therefore to predict what effect a flawed decision will have. Section I argues that the propositions are based on a misleading interpretation of Anisminic Ltd v. Foreign Compensation Commission which has cloaked the creativity of administrative lawyers for forty years. Section II builds an alternative set of principles from the practice of courts. Section III suggests that these principles provide a basis for a realistic, predictable and principled understanding of administrative law.

James Crawford: The International Law Bar: Essence Before Existence? (11/2014)

It is almost an axiom that ‘[t]here exists no ‘international bar’ regulating forensic advocacy before international courts and tribunals’. 1 The ‘cardinal principle remains the freedom of choice by the State of the persons who will assist its agent’. 2 There is clearly no international law bar comparable to domestic bars – there are no qualifications which someone must attain before appearing before international courts and tribunals, no international code of ethics with which they must comply, and no international association to sanction them for misconduct. Here I will discuss, first, why there is no international law bar, focusing on the development of international advocacy and its regulation over the past century; and, secondly, what we have in the place of an international law bar. I conclude by asking whether things could, and should, change.

Berk Demirkol: Does an Investment Treaty Tribunal Need Special Consent for Mass Claims? (20/2014)

This paper is a case note on the Supreme Court's decision in Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33.

Neil Andrews: On 'Proportionate' Costs (22/2014)

The English costs rules were amended in April 2013 to implement Sir Rupert Jackson’s Costs Inquiry (2010). Proportionality has become (see sections II to IV of this paper) the final determinant when assessing standard basis costs, supplementing but also trumping the pre-existing criteria of necessity (was the relevant item necessary?) and reasonableness (was the item reasonable in amount?). It will be contended in this article that, of the several possible rationales for reducing costs in the name of 'proportionality' (on these rationales see section V), such a reduction is justified only when there is something on the receiving party’s side which has gone procedurally awry, some element of misconduct which warrants a reduction in recoverable costs (section V). And so proportionality should be invoked only when the receiving party has unreasonably conducted the claim in a manner which is too heavy-handed and over-blown, having regard to the case’s scale, or his conduct of the case has been otherwise seriously unsatisfactory.

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