Legal Studies Research Paper Series Vol. 5, No. 12

The Faculty has published Volume 5 Number 12 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

David Howarth and Shona Wilson Stark: The Reality of the British Constitution: H.L.A. Hart and What 'Officials' Really Think (53/2014)

In The Concept of Law, H.L.A. Hart argued that one of two 'minimum conditions necessary and sufficient for the existence of a legal system' was that 'its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behaviour by its officials'. Those rules, his 'secondary rules', form a crucial part of Hart's theory that the way to understand law is as the union of primary and secondary rules. This paper sets out to test that claim as a matter of empirical fact. If one asks UK officials what they think the UK's rules of recognition, change and adjudication are, and whether they accept them as common public standards, what do they say?

Instead of interviewing judges, whose official views are readily accessible in their judgments, we concentrated on high non-judicial officials - senior civil servants, including former Cabinet Secretaries, military officers, including former Chiefs of the Defence Staff, chief constables and chief executives of local authorities. A series of recent examples of UK constitutional rules coming under stress were put to interviewees, in particular the request by Admiral Sir Michael Boyce at the cusp of the Second Iraq War for authoritative advice on the legality of the war. Interviewees discussed their understanding of how one identified legal rules, how legal rules changed and how they were settled if there was disagreement.

We found some consensus but also a great deal of divergence. We also found, at least in the Civil Service, a degree of willingness to defy the courts entirely incompatible with the existence of any straightforward Hartian 'internal point of view' towards the law, at least as the courts understand it.

But we also found evidence not so much for lawlessness within the UK government as for the existence of a separate legal system, centering on the figure of the Attorney-General. One way of interpreting our evidence is that there is not just one British constitution, but three, one built around the perspective of the courts, one around the perspective of the Government and around the perspective of Parliament.

Brian Cheffins, Steven A Bank and Harwell Wells: The Race to the Bottom Recalculated: Scoring Corporate Law Over Time (54/2014)

The most enduring and widespread academic disputes in American corporate law concern jurisdictional competition. Scholars have debated, at great length, questions stemming from the ability of corporations to choose what jurisdiction to incorporate in: To what extent do states compete for incorporations? Has the jurisdictional competition between states produced better or worse corporation law (has it been a “race to the bottom”, or one to the top)? To what extent has the Federal government influenced this state competition? Is meaningful state competition still occurring or was the race won or lost long ago?

Debates over these questions have often foundered because of difficulties associated with ascertaining whether the corporation law in question is good or bad, and whether it has gotten better or worse over time. In this Article, we seek to break the scholarly log jams concerning corporate law federalism by undertaking the first systematic attempt to measure how U.S. corporate law has evolved since 1900. Using three indices developed to measure the relative strength of corporation law across nations, we evaluate three vital bodies of U.S. corporate law, those of Delaware and Illinois and the Model Business Corporation Act, from the beginning of the twentieth century to the present day.

Our results are novel in several respects. We find that the protections afforded to shareholders by state corporation law have decreased since 1900 but only modestly so, which implies that state competition has not been very vigorous. When we use measures that count protections provided by federal as well as state law, however, we get a different result. We find that requirements adopted by the federal government since the 1930s have significantly increased shareholder protection, suggesting that federal intervention has played a crucial and perhaps underappreciated role in shaping U.S. corporate law and enhancing shareholder rights. Beyond its specific findings, this study’s methods provide scholars new ways to answer some of the most fundamental questions in corporate law.

Lorand Bartels: Social Issues in Regional Trade Agreements: Labour, Environment and Human Rights (57/2014)

This chapter reviews the several ways that bilateral and regional trade agreements regulate environmental and labour standards and human rights. It divides these into provisions granting the parties rights to adopt protective measures in the form of exceptions and conflicts provisions and provisions imposing on the parties obligations to take positive steps to implement certain norms. The chapter also reviews the extent to which these obligations can be enforced, if at all.

Visa AJ Kurki: Hohfeldian Infinities: Why Not to Worry (58/2014)

Hillel Steiner has recently attacked the notion of inalienable rights, basing some of his arguments on the Hohfeldian analysis to show that infinite arrays of legal positions would not be associated with any inalienable rights. This discussion addresses the nature of the Hohfeldian infinity: the main argument is that what Steiner claims to be an infinite regress is actually a wholly unproblematic form of infinite recursion. First, the nature of the Hohfeldian recursion is demonstrated. Second, the alleged problems that this might pose for the analysis are discussed. Finally, the point is made that infinite recursions of legal positions ensue regardless of whether inalienable rights exist or not.

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