Legal Studies Research Paper Series Vol. 6, No. 6

The Faculty has published the third edition of 2014, Volume 6 Number 6 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

David Erdos: From the Scylla of Restriction to the Charybdis of License? Exploring the Present and Future Scope of the ʻSpecial Purposesʼ Freedom of Expression Shield in European Data Protection (20/2015)

European data protection sits in a relationship of profound tension with public freedom of expression. Although Directive 95/46 does include a special purposes provision requiring that Member States set out qualified shields for processing ‘carried out solely for journalistic purposes or the purposes of artistic or literary expression’, its scope is both too opaque and too restrictive to provide for a general reconciliation of values in this area. As vividly highlighted by the recent Google Spain decision, these problems were only partially resolved in the EU Court of Justice’s Satamedia judgment. Current suggestions that this provision be amended so as to require Member States to effect a reconciliation between data protection and freedom of expression itself run the theoretical risk of expanding the scope of this highly discretionary clause into one of universal application. However, since this would dramatically conflict with the core harmonizing aim of European data protection reform, such a change would almost certainly be interpreted much more restrictively, thereby fuelling the confusion which exists in this area. A two-pronged, layered approach may offer a better way forward. Firstly, the special purposes provision should be expanded to clearly protect all activities orientated towards disclosing information, opinion or ideas for the benefit of the public collectively. Secondly, Member States should also be obliged to effect a broader but more stringent reconciliation of data protection with the right to public freedom of expression under the law’s general derogation provisions.

Nicholas McBride: Tort Law and Criminal Law in an Age of Austerity (22/2015)

In this paper, I consider how tort law and criminal law - conceived as interlocking and overlapping systems for protecting and upholding the legal rights people have against other people - should operate in a society where there are not enough public funds available to run those systems properly or, in the case of tort law, assist people to take advantage of those systems. I discuss how we should identify what kinds of legal wrongs, or violations of people's legal rights, most need to be addressed by a legal system operating in financially straitened circumstances and how those wrongs might be most effectively be addressed in such circumstances. I also advance some arguments for thinking that we will be shortly living in a society where nowhere near enough money will be available to properly fund our justice system, and that we must start thinking now about the issues raised in this paper.

Brian Sloan: Adult Social Care and Property Rights (24/2015)

This paper arises out of the project on adult social care and property rights that the author began at the Centre for Research in the Arts, Social Sciences & Humanities (CRASSH) in Cambridge. It assesses the possible impact of the Care Act 2014 on the provision of social care for elderly and disabled adults in England, focusing particularly on the balance between ensuring adequate care and affecting the property rights of the recipients of social care, their families, and others who might have legal or moral claims to their property (especially via inheritance). The paper uses the European Convention on Human Rights to measure the Act's implications, arguing that normative problems remain despite the Act's general compatibility with the Convention.

Simon Deakin and Antara Haldar: How Should India Reform Its Labour Laws? (25/2015)

We examine the current policy debate around the reform of labour laws in India, which has been stimulated in part by the success of the Gujarat model of economic development. Gujarat’s deregulatory reforms have included changes to the legal regime governing employment terminations, which could form a basis for a change in national-level labour laws. Evidence linking labour law deregulation to growth, however, is weak, whether the focus is on India or the experience of other countries. Building labour market institutions is a long-term process which requires investment in state capacity for the management of risks associated with the transition to a formal economy.

Jastine Barrett: An Exercise in Pragmatism? UNICEF's Approach to Child Rights and the Child Génocidaire (29/2015)

Following the 1994 Rwandan genocide, more than 4,500 children were imprisoned, accused of genocide-related crimes. The Convention on the Rights of the Child does not prohibit the prosecution of children but does establish juvenile justice standards. As a state party, Rwanda was under an obligation to comply with these standards as well as its own relevant domestic laws. In its approach to child génocidaires, Rwanda drew on the support of transnational actors, in particular UNICEF, the lead UN agency for children in conflict with the law. Based on an analysis of archival material and semi-structured interviews, this paper examines how UNICEF Rwanda negotiated the tension between pragmatism and normativity in its approach to child génocidaires. It profiles the pragmatic approach adopted by UNICEF Rwanda in the interpretation of international standards, drawing out tensions within UNICEF and between UNICEF Rwanda and other actors over how best to implement the Convention (particularly as regards detention). It then evaluates whether there was risk of weakening the normative content in the desire to implement the standards in a socially-sensitive and context-specific way. The paper argues that, by adopting a pragmatic approach and using the Convention as a framework rather than a blueprint, UNICEF Rwanda was, to some extent, able to translate the ‘idealistic’ principles of the Convention into practical implementation in the difficult context of post-genocide Rwanda.

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