Legal Studies Research Paper Series Vol. 8, No. 3

The Faculty has published Volume 8 Number 3 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Astron Douglas: Equitable Priorities under Registered Land (5/2017)

In the recent decision of Wishart v Credit and Mercantile plc [2015] EWCA Civ 655, the Court of Appeal postponed a prior beneficial interest under a trust held by a person in actual occupation in favour of a later mortgage. The application of the usual principles in Williams and Glyn's Bank v Boland would have meant that the prior beneficial interest would have taken priority. But the Court of Appeal, applying what it termed the Brocklesby principle, held that the beneficiary was bound by the fraudulent actions of his trustee. This marks a return of principles of equitable priorities to the Land Registration Act 2002. The court did not, however, engage in the wider question of whether and to what extent the principles of equitable priorities, which were fashioned under a very different system of conveyancing, ought to be applicable to the Land Registration Act. This paper examines the previous law on equitable priorities and suggests how it would need to be modified before application to the Land Registration Act and argues that Wishart was wrongly decided.

Matthew H. Kramer: Problems of Dirty Hands as a Species of Moral Conflicts (7/2016)

Every problem of dirty hands is a moral conflict in which a highly unpalatable course of conduct is chosen for the sake of fulfilling a stringent moral duty, and in which either the chosen course of conduct is evil or else it would have been evil in the absence of the exigent circumstances to which it is a response. To support this conception of problems of dirty hands, this paper endeavors to elucidate the nature of moral conflicts and the nature of evil.

Matthew H. Kramer: Too Much from Too Little: A Critique of Gerald Gaus's Libertarian Neutralism (8/2017)

Gerald Gaus is the pre-eminent contemporary exponent of the libertarian strand of anti-perfectionism. His relevant writings over three decades include some powerful and lengthy tomes as well as many articles, but I will concentrate here on certain lines of reasoning in two quite recent essays of his. In those essays, Gaus endeavors to establish that his variety of neutralism -- with its distinctively libertarian tenor -- can be derived from some premises that are compelling and therefore largely uncontroversial.

This article will contest some aspects of his derivation and will particularly contest his suggestion that his premises are suitably uncontroversial as the bases for a doctrine of liberal neutralism. Both his neutralism and his libertarianism will come under challenge here. Because Gaus has produced such a highly impressive body of work, my engagement with his sophisticated reflections can signal the need for some departures from neutralism in its current forms.

Michael Waibel & Fiona Sofie Petersen: State Liability in the EEA (10/2017)

In Sveinbjörnsdóttir v. Government of Iceland, the EFTA Court extended the EU principle of state liability from EU law to the European Economic Area.

Consequently, EFTA States are obliged to compensate individuals for damage caused by breaches of EEA law for which they are responsible. The EFTA Court has affirmed that the same three conditions apply to state liability claims than in EU law, but with some possible modifications. Section 2 addresses the justifications for state liability in the EEA and Section 3 explores the criteria for establishing state liability. Section 4 looks at a contentious example of the lack of state liability – the Icesave I case before the EFTA Court.

Michael Waibel: Monetary Policy: An Exclusive Competence Only in Name? (11/2017)

Monetary policy for those Members whose currency is the Euro is one of European Union's few formally exclusive competences. Yet despite formal allocation of monetary policy competence to the Union, this chapter argues that the practice of monetary policy decision-making reflects the EU's nation-state structure. It tells us one side of the story about the balance of power for the conduct of monetary policy. If exclusive competence at bottom means that member states have no say in devising policy, then monetary policy, is not at present a genuinely exclusive competence.

Instead, the chapter contends that monetary policy is an exclusive competence of the EU in name only. At the very least, the position is more nuanced than the label of exclusive competence suggests.

The first section compares competence for monetary policy with related areas, specifically economic policy, and closely connected thereto, education, health, labour and social policy. It also briefly discussed how the Eurozone crisis has affected the vertical balance of responsibilities between the EU and its member states in these areas. The second section examines the asymmetric allocation of competence for economic and monetary policy, and the fuzzy boundary between the two, through the prism of the two key Eurozone crisis cases before the CJEU, Pringle and Gauweiler. The third section examines why, contrary to first appearances, the EU does not at present have a genuine exclusive competence for monetary policy.

Lorand Bartels: Human Rights, Labour Standards and Environmental Standards in CETA (13/2017)

This chapter discusses the provisions in the Canada-EU Comprehensive Economic and Trade Agreement (CETA) on the protection of labour and environmental standards and human rights. It first outlines the obligations of the parties to protect labour and environmental standards, human rights and democratic principles. Next, it discusses certain means by which the economic obligations of the parties may be interpreted, either expressly or by implication, to reflect these values. Third, it analyses the rights of the parties, in the context of exceptions, to adopt measures to protect labour and environmental standards and human right obligations, and the extent to which CETA’s obligations might expand the ordinary jurisdictional scope of these rights.

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