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Wednesday, 10 September 2014

Cambridge Faculty of Law Legal Studies Research Paper SeriesThe Faculty has published Volume 5 Number 10 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

TRS Allan: Justice, Integrity, and the Common Law (44/2014)

Ronald Dworkin’s work in legal theory emphasizes the close dependence of common law adjudication on moral reasoning. Legal principles play the dominant role, rather than determinate rules: propositions of law are drawn from an interpretation of precedent, bringing moral judgement to bear on an institutional record of earlier decisions. Questions remain, however, about the relationship between relevant values of legality, integrity, and justice. Dworkin supposes that interpretation in accordance with the ideal of integrity, based on the principle of equal respect and concern, may nevertheless yield gravely unjust conclusions, at least on some occasions. This essay suggests, to the contrary, that the role of justice within the deliberative process excludes any such major divergence between justice and integrity. While he retains his allegiance to the legal order - affirming its legitimacy - the common law judge can always fulfil his duty to do justice according to law.

Jens M. Scherpe and Brian Sloan: Contractualisation of Family Law in England and Wales (45/2014)

This paper was prepared for the 'Contractualisation of Family Law' section of the International Academy of Family Law's XIXth International Congress of Comparative Law in July 2014. The aim of the project is to assess the extent to which family law in various jurisdictions permits ‘private ordering’ by the parties to family relationships, as opposed to imposing a status-based set of rules to govern those relationships. The project covers substantive and procedural law relating to both adults and children, and this paper is the contribution from England and Wales. The paper’s substantive text was completed in December 2013, and the questionnaire to which it responds was prepared by Professor Frederik Swennen.

RT Coupe: An Evaluation of the Effects of Police Resources and Incident Solvability on Crime Detection (46/2014)

This study examines the relationships between incident solvability, resources and crime detection. It involves critical examination of existing studies, and the development of solvability and resourcing concepts and a resourcing-solvability theoretical model. The application of resources to the investigation of solvable incidents explains detection levels and the origins of solvability lie in offender characteristics and environments, which affect profiles of solvable offences across jurisdictions. Solvability varies between different sorts of crime and within the same offence types. It limits crime detection and determines the amount of resources needed to clear an offence. Resources enable the potential for detection due to solvability to be realised. The detection of low and medium solvability offences and the benefits of larger amount of resources being directed at highly solvable offences are at odds with prior research, while levels of offence solvability and potential detections have been under-estimated.

Mark Elliott: Constitutional Legislation, European Union Law and the Nature of the United Kingdom's Contemporary Constitution (49/2014)

This paper is centrally concerned with the judgment of the UK Supreme Court in R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3, [2014] 1 WLR 324. The paper argues that three aspects of the HS2 case form part of a constitutional tableau that exhibits characteristics which are either novel in themselves or which presuppose readings of the constitution that are in some respect novel. First, the case acknowledges that the UK constitution now differentiates between ‘constitutional legislation’ and ‘ordinary legislation’ — a legal distinction that was, until very recently, entirely alien in the British context. Second, HS2 indicates that the former category may itself be hierarchically nuanced, some constitutional legislation (and principles) being more fundamental than others — an insight that impacts upon the way in, and the extent to, which European Union law is considered to enjoy primacy in the UK. Third, and most broadly, the HS2 judgment forms part of a wider narrative arc being advanced by the UK’s senior judiciary, according to which the central notion of parliamentary sovereignty falls to be understood within a constitutional framework that is increasingly rich in nature.

Hayk Kupelyants: Police Powers of States in Sovereign Debt Restructurings (50/2014)

The paper looks at the powers of the States to unilaterally modify their debt obligations in the context of sovereign debt restructurings. Drawing on the national case law on the unilateral modifications of domestic debt, the paper argues that the States entering into sovereign bonds act in private capacity and cannot modify the private obligations in a unilateral manner. To support the argument, paper relies on the case law from the US, the Russian Federation and England. The paper also considers the powers of the State to modify private-to-private debt obligations and the debt entered into by quasi-public entities.


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