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Thursday, 15 September 2016

Cambridge Faculty of Law Legal Studies Research Paper SeriesThe Faculty has published Volume 7 Number 9 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Kirsty Hughes: Coughlan and the Development of Public Law (36/2016)

This paper forms part of an edited collection that examines landmark cases in public law. Taking Coughlan as its focal point it explores the development of substantive legitimate expectations, and how and why the Court of Appeal found in favour of Pamela Coughlan.

Coughlan pitted a vulnerable individual who had been promised something fundamental to her quality of life against the freedom and autonomy of the health authority to make financially robust decisions that would impact upon the provision of services to the broader public. In establishing that a balance must be struck between such interests Coughlan forms an important part of the development of fundamental principles such as fairness and abuse of power, and the proportionality standard of review as part of administrative law. It also brought the relationship between the judiciary and the executive into sharp focus. Should the judiciary enforce substantive promises and preclude the executive from defaulting, or should the judiciary defer to executive decision-making unless the decision is Wednesbury unreasonable? By electing to protect fairness and prevent abuse of power the Court afforded a greater role to the judiciary in holding the executive to account. Thus the judgment forms an important part of the development of substantive judicial review and the protection of the individual.

To fully appreciate how the Court of Appeal came to find in favour of Pamela Coughlan it is necessary to examine both the context in which the case arose and the cases that have followed. The timing of the case and the composition of the bench are an important part of the story behind Coughlan. It did not come out of nowhere; it followed a series of cases in which two prominent lawyers (and later judges) Sir Stephen Sedley and Sir John Laws sought to push or oppose the development of legitimate expectations. In a string of cases whilst they were still at the bar the two barristers went head-to-head on the question of whether authorities could be bound by their expectations, and if so whether this was limited to procedural expectations or whether it also extended to substantive legitimate expectations. As judges they played a fundamental role in developing the doctrine, and Coughlan and the development of substantive legitimate expectations provides an important illustration of the significance of individual judges to the evolution of public law, the role of different constitutional visions and how they change over time

Overall it is by examining the historical context of Coughlan and the developments that have followed that we are able to contextualize the importance of the decision, its legacy, and ultimately to determine whether it can be considered a landmark case.

Michael Waibel: Eurobonds: Legal Design Features (37/2016)

In light of proposals for Eurobonds, this article explores central legal features of the Eurobond proposals. Section I focuses on the development of the law governing sovereign bonds and assesses the potential, but limited role of international law to Eurobonds. Section II considers the equal treatment of bondholders, looking at the two potential sources of non-discrimination obligations for sovereign bonds and their relevance to Eurobonds. Section III turns to two crucial design features of Eurobonds - which existing proposals mostly address only in passing:

(i) which legal entity issues Eurobonds; and

(ii) what form of debt mutualization Eurobonds involve.

Steven A Bank, Brian R Cheffins and Harwell Wells: Executive Pay: What Worked? (38/2016)

CEO pay is a controversial issue in America but there was a time, often overlooked today, when chief executives were not paid nearly as much as they are now. From 1940 to the mid-1970s executive pay was modest by today’s standards even though U.S. business was generally thriving. What worked to keep executive pay in check? Economist Thomas Piketty and others credit high marginal income tax rates, leading to calls for a return to a similar tax regime. This paper casts doubt on the impact tax had and also shows that neither the configuration of boards nor shareholder activism played a significant role in constraining executive pay. It emphasizes instead the roles played by strong unions, a different and more circumscribed market for managerial talent, and social norms, explanations that do not easily lend themselves to generating modern policy prescriptions.

Marc T Moore: Shareholder Primacy, Labour and the Historic Ambivalence of UK Company Law (40/2016)

Most directors and senior managers of UK companies would likely regard it as trite law that, in undertaking their managerial and/or control functions, they are accountable first and foremost to their employer firm’s general body of shareholders. It follows that the interests of other corporate constituencies – and, in particular, those of employees – must ultimately cede to those of shareholders in the event of conflict. Although frequently taken for granted today, the lexical priority that the British company law framework affords to the interests of shareholders over those of other corporate constituencies is remarkable, not least when viewed alongside the correspondingly disempowered corporate governance status of labour in the UK. However, whilst the centrality of shareholders’ interests to the doctrinal and normative fabric of contemporary UK company law is both manifest and incontrovertible, this has curiously not always been the case. In this paper I argue that, whilst UK company law might look substantively stable and well-settled on its surface today, on closer inspection this façade of apparent calm can be seen to mask a fairly recent history of doctrinal and ideological turbulence with regard to fundamental underlying concerns. There is thus cause to question whether the basic normative impetus of the UK’s company law framework is as complementary to its surrounding economic and socio-political context as might first appear.


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