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Thursday, 28 January 2016

Cambridge Faculty of Law Legal Studies Research Paper SeriesThe Faculty has published the second edition of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRNVolume 7 Number 2.

This issue includes the following articles:

Nicholas McBride: The Humanity of Private Law - An Introduction (63/2015)

This is a draft of the introduction to a book I am working on called The Humanity of Private Law – which book will attempt to present a new account of private law as centred around the promotion of a particular vision of human flourishing.

As well as introducing the main claims of the book, this introduction also discusses: (1) economic and Kantian explanations of private law; (2) the explanations of tort law put forward by John Goldberg and Benjamin Zipursky, and by John Gardner; (3) the nature of corrective justice; (4) the nature of morality; (5) the justifiability of strict legal duties to succeed; (6) the difference between explanations and evaluations of private law; and (7) three different models of human flourishing.

Shona Wilson Stark & Neil Faris: Law Reform in Northern Ireland: Cheshire Cat or Potemkin Commission? (1/2016)

In this article, the authors analyse the law reform machinery of Northern Ireland. The Northern Ireland Law Commission was established in 2008 and, in early 2015, its funding was withdrawn. The reasons for the late arrival, and relative lack of success, of independent law reform in Northern Ireland are detailed in this article. The subject matter is of interest to those interested in law reform throughout the United Kingdom for reasons which are advanced in the article. Lessons may also be learned by other small jurisdictions seeking to establish or operate law reform bodies.

Antje Du Bois-Pedain: Punishment 'In the Realm of Finite Things': Hegel and the Justification of Real-World Penal Sanctions (2/2016)

This paper revisits Hegel’s writings on punishment to reconstruct from them a justification for the imposition of real-world penal sanctions. Tracing Hegel’s argumentative path from a bare retributive principle to his mature justification of state punishment, it argues that Hegel offers us convincing reasons for endorsing, in broad shape, the distinctive penal institutions and practices of a modern nation-state. Hegel is also right to stress that punishment is – not merely conceptually, but also in the reality of our social world – a recognition of an offender’s status as a bearer of rights and participant in a system of mutual recognition that allows us to collectively build and maintain an order of freedom. This understanding of punishment sets significant limits to punishment’s permissible forms, particularly – but not only – with regard to the death penalty. By focusing on what it means to honour an offender through punishment and by drawing attention to what legal punishment has in common with reactions to transgressions by the will more generally, I question whether the infliction of penal suffering can, as such, be a legitimate aim of penal agents. In conclusion, I argue that only a commitment to penal minimalism, developable from Hegel’s thought, can give those subjected to real-world penal sanctions a complete answer to the question why they should accept their punishment as justified.

Carlos Arrebola, Ana Julia Mauricio & : Héctor Jiménez Portilla: An Econometric Analysis of the Influence of the Advocate General on the Court of Justice of the European Union (3/2016)

This article contributes to a more comprehensive understanding of the role of the Advocate General in the makeup of the Court of Justice of the European Union. The article measures the influence of the Advocate General on the judgments of the Court of Justice through an econometric study using a probit model with data from annulment procedures of the last twenty years (1994-2014). Despite the acknowledged limitations in establishing the influence of the Advocate General on the case law of the Court of Justice via a quantitative analysis, the regression models used in this article give a statistically significant measure of such influence, improving previous attempts in the literature. The findings suggest that the Court of Justice is approximately 67 percent more likely to annul an act (or part of it) if the Advocate General advises the Court to annul than if it advises the Court to dismiss the case or declare it inadmissible. These results raise several questions as regards judicial independence and the relevance of the figure of the Advocate General, providing a grounded basis for future discussions and judicial reform.


Interested readers can browse the Working Paper Series at SSRN, or sign up to subscribe to distributions of the the e-journal.