skip to content
Tuesday, 22 August 2017

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

This issue includes the following articles:

Jacob Eisler: Partisan Gerrymandering and the Illusion of Unfairness (29/2017)

Partisan gerrymandering is frequently condemned for distorting democracy and causing unfair representation, and many reformers have called upon federal courts to prohibit the practice. However, the judiciary has struggled to advance a coherent approach to partisan gerrymandering. Conservative justices have argued the practice raises a non-justiciable political question, and the remainder of the bench has failed to reach any agreement on the right test.

This Article argues that courts have struggled with the law because the threat from partisan gerrymandering is illusory. Parties are responsive to external conditions, including the composition of legislative districts. Therefore, voters, candidates, and party leaders can adapt to compete for the constituencies of redrawn districts. When partisan gerrymandering appears harmful, the true culprit is the fracturing of the electorate into factions due to voters’ political preferences. The appropriate forum for resolving such substantive disputes among citizens is democratic contestation, not rights-based judicial intervention. Subsequently, reformers’ hope that eliminating partisan gerrymandering will fix American democracy is misplaced. This divergence between the real character of partisan gerrymandering and its treatment by the legal academy is responsible for the lack of clarity in the jurisprudence. To support this conclusion, this Article draws on social science analysis of political behavior to offer a unified perspective on party affiliation, voter preference, and constitutional rights.

Brian Sloan: Charges for Charges: Home Sales Under the Care Act 2014 (30/2016)

Unlike healthcare, broadly provided free at the point of delivery in England, social care is subject to a means test that can include the care recipient’s home. One principle embodied in the Care Act 2014 is nevertheless the frequent undesirability of a recipient being forced to sell her own home during her lifetime to fund her care. It therefore seeks to increase the availability of Deferred Payment Agreements (‘DPAs’), enabling a local authority to make a secured loan to the care recipient. Even if this system is beneficial to such recipients themselves, it can have profound implications for people who wish to remain in the home of a now-deceased recipient. This is particularly true given that the secured loan facilitated by a DPA is due for repayment just 90 days after a recipient’s death, and that former co-residents might be vulnerable former providers of informal care. This paper aims to evaluate the relationship between former co-residents and home sales forced by local authorities, comparing a former co-resident’s position with that of others whose homes are the subject of attempted forced sale by creditors in other contexts, by examining law, guidance and codes of practice. The fundamental question is whether the system of DPAs governed by the Care Act adequately balances the perceived societal interest in ensuring that those with means contribute towards their care costs and the individual interests of former co-residents in remaining in their own homes after the death of a social care recipient.

David Erdos: Delimiting the Ambit of Responsibility of Intermediary Publishers for Third Party Rights in European Data Protection: Towards a Synthetic Interpretation of the EU acquis (31/2017)

With the explosion of computer technology, vastly more and more varied types of data related to individuals are being disseminated online, often without their consent. Whilst intermediary publishers are not the initial and immediate cause of this, they generally play a contributory role and engage in further (semi-)autonomous processing such as organising or promoting content. Current case law rather haphazardly recognises intermediary publishers to be data protection ʻcontrollersʼ and/or protected by the intermediary ʻhostʼ shield, whilst also acknowledging the engagement of general human rights law. Seeking to synthetically balance the competing purposes which underlie these three legal frameworks, this paper argues that greater responsibility should flow from more autonomous control but that some shielding is still necessary for all intermediary publishers. Conceptually it is argued that such a synthetic approach leads to intermediary publishers being grouped into three increasingly autonomous categories - ʻprocessor hostsʼ, ʻcontroller hostsʼ and ʻindependent intermediariesʼ - which should be subject to a successively greater ambit of responsibility accordingly. Detailed elaboration of the resulting duties must also take account of the seriousness of the potential interference with competing rights and, in this regard, should give weight to the divergent resource capacity of otherwise similarly situated actors.

Nicholas McBride: Equality, Flourishing, and the Existence of Legal Absolutes (34/2017)

This paper was delivered at a conference on ‘Law as a Guide to Justice’, on Saturday 4 March 2017. The conference was held in honour of Amanda Perreau-Saussine Ezcurra, who died on August 2, 2012, at the age of 41. My paper is based on two observations: (1) that the dominant vision of human flourishing in Western culture (what I call the ‘RP’) is a Possessions Model of human flourishing, under which someone can only be said to be flourishing if they possess a particular set of goods; (2) that the kind of exceptionless prohibitions that Amanda Perreau-Saussine expected to find in the law are actually very rare in Anglo-centric systems of law and those which do exist are coming under increasing pressure. I suggest in my paper that these two observations are linked by virtue of the fact that it is simply not possible for everyone in a given society to enjoy the kind of life that the RP tells us is a flourishing life (what I call ‘RP flourishing’). This means that choices have to be made as to who RP flourishes and who does not, and results in the dominant mindset in Western societies becoming utilitarian in nature. I go on to suggest that exceptionless legal prohibitions will only become the norm again if we adopt a quite different vision of human flourishing, based on a Journey Model of human flourishing, according to which someone’s flourishing depends on the direction in which their life is going. I then argue that we should make this switch, from thinking of human flourishing in terms of RP flourishing to thinking of human flourishing as based on a Journey Model of human flourishing, as any vision of human flourishing that cannot be enjoyed equally by everyone automatically condemns itself as incorrect. We can only live in a society that can be said to amount to a form of friendship – where people share equally in the enjoyment of common goods – if we give up on the Possessions Model of human flourishing that underlies the RP and adopt a Journey Model instead.


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