Legal Studies Research Paper Series Vol. 7, No. 4

The Faculty has published Volume 7 Number 4 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Antje Du Bois-Pedain: Violent Dynamics: Exploring Responsibility - Attribution for Harms Inflicted During Spontaneous Group Violence (8/2016)

Violent encounters between groups of individuals often leave one or more of the participants dead, and it may be clear from the evidence that the physical cause of death was set by the single, deliberate act of one of the participants only. When this happens, the question arises whether, and how, responsibility for the fatal act and/or for its consequences can be attributed to other participants in the punch-up. Criminal law has long sought – and found – ways of holding others apart from the direct agent responsible for the harms caused in such encounters, although the legal constructions used differ between legal systems and often change significantly over time even within the same jurisdiction. This paper investigates the appropriateness of different criminal-law responses to these cases from two directions: first, by exploring the possible doctrinal grounds within the criminal law for attributing responsibility for the fatal act/outcome to all participants; and then by investigating the extent to which these responsibility-ascriptions are supported or challenged by insights from psychological studies of group action.

Nicholas McBride: The Humanity of Private Law - Chapter 1. Building Blocks (9/2016)

In this draft of the first substantive chapter from The Humanity of Private Law, I set out a (more or less) complete grammar of private law, explaining how fundamental private law concepts like right, duty, obligation, wrong, liability, power, disability, interest, and property relate to each other, while noting the occasions when the ways in which these concepts are used will be affected by what account of private law one endorses – so that, for example, the notion of someone having a ‘right to’ something is indispensable under a Kantian account of private law, while non-Kantians need not make use of such an idea and should not, if they want to avoid confusion.

Among the cases discussed in this chapter are Hedley Byrne v Heller, Spartan Steel & Alloys Ltd v Martin, Bradford v Pickles, Armory v Delamirie, Vincent v Lake Erie, and Rylands v Fletcher. Among the issues discussed are: (1) the nature of legal duties, and what makes a particular legal duty a private law duty; (2) the nature of the rights set out in the European Convention on Human Rights; (3) the distinctions between different kinds of private law liabilities, and private law powers; (4) whether there is a duty to pay damages to the victim of one’s wrong, or make restitution to someone at whose expense you have been unjustly enriched; (5) the proper analysis of awards of damages in lieu of an injunction; and (6) the nature of property, interests in property, and rights arising out of having an interest in property.

Graham Virgo: Restitution and Unjust Enrichment in the Supreme Court: Reflections on Bank of Cyprus UK Ltd v Menelaou (10/2016)

A review of the decision of the UK Supreme Court in Bank of Cyprus UK Ltd v Menelaou.

Chintan Chandrachud: Proportionality, Judicial Reasoning, and the Indian Supreme Court (12/2016)

On the 11th of December 2013, a bench of two judges of the Indian Supreme Court reversed a Delhi High Court judgment reading down section 377 of the Indian Penal Code (IPC), a colonial-era sodomy law. The Court’s judgment was heavily critiqued based on liberal conceptions of gender, identity and sexuality. Commentators, however, were not just unsettled by the ultimate decision of the Court, but also by the absence of logical reasons in support of the Court’s decision. Ironically, the Court relied upon the ‘reasonableness test’ – well established in Indian constitutional law – in deciding the case. This judgment offers an opportunity to reflect upon whether it remains reasonable to employ the reasonableness test in an age in which the proportionality test is ‘dominating the dockets’ of supreme courts around the world.

Many commentators claim that the Indian Supreme Court is already applying the test of proportionality in constitutional adjudication. The first objective of this paper is to debunk these claims. Although proportionality-type considerations are sometimes taken into account in the reasonableness test, there is a difference between adopting the proportionality test comprehensively and relying, ad hoc, on one or more of its components. Even in cases in which the Court has explicitly claimed to be applying the proportionality test, it has done so only in name.

From this analytical argument, the paper then moves to a normative argument. Proportionality promotes a culture of justification and reason giving that is lacking under the reasonableness test. To establish this claim, the paper distinguishes between three categories of errors – and explains that proportionality review mitigates the possibility of errors that represent a failure of the duty to give reasons for judgment. The Indian Supreme Court’s (anti-) LGBT rights judgment provides a paradigm case of how reasonableness, in contrast with the proportionality test, can obscure reason giving in a most remarkable way.

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