Legal Studies Research Paper Series Vol. 9, No. 2

The Faculty has published Volume 9 Number 2 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Mark Elliott: Through the Looking-Glass? Ouster Clauses, Statutory Interpretation and the British Constitution (4/2018)

This purpose of this paper is to examine the way in which courts in the UK interpret both ouster clauses and other provisions that may appear to inhibit or preclude the performance of the judicial, including the interpretive, function. Examining such questions supplies a valuable opportunity to consider how the UK's uncodified constitutional system works, and how judicial understandings of that system - and of the curial role within it - have developed over time. In this way, it becomes possible to understand why older decisions in which legislative ouster was met with judicial equanimity seem so archaic when viewed through a contemporary lens. Ultimately, the question arises whether judicial construction of ouster clauses in the UK is so strained as to amount, in substance, to something more than just interpretation - a question that implicates fundamental issues about the veracity of the principle of parliamentary sovereignty. It is argued, however, that the case law - and the broader set of institutional interactions of which it forms a part - does not provide any definitive answer to such questions, and that the imperative of avoiding constitutional crisis renders such uncertainty a good rather than a bad thing.

Joanna Bryson, Mihailis Evangelos Diamantis & Thomas D. Grant: Of, for, and by the People: The Legal Lacuna of Synthetic Persons (5/2018)

Conferring legal personhood on purely synthetic entities is a very real legal possibility, one under consideration presently by the European Union. We show here that such legislative action would be morally unnecessary and legally troublesome. While AI legal personhood may have some emotional or economic appeal, so do many superficially desirable hazards against which the law protects us. We review the utility and history of legal fictions of personhood, discussing salient precedents where such fictions resulted in abuse or incoherence. We conclude that difficulties in holding “electronic persons” accountable when they violate the rights of others outweigh the highly precarious moral interests that AI legal personhood might protect.

Veronika Fikfak & Hayley J. Hooper: Parliament's Secret War (6/2018)

The invasion of Iraq in 2003, and the Coalition Government's failure to win parliamentary approval for armed intervention in Syria in 2013, mark a period of increased scrutiny of the process by which the UK engages in armed conflict. For much of the media and civil society there now exists a constitutional convention which mandates that the Government consults Parliament before commencing hostilities. This is celebrated as representing a redistribution of power from the executive towards a more legitimate, democratic institution. This book offers a critical inquiry into Parliament's role in the war prerogative since the beginning of the twentieth century, evaluating whether the UK's decisions to engage in conflict meet the recognised standards of good governance: accountability, transparency and participation. The analysis reveals a number of persistent problems in the decision-making process, including Parliament's lack of access to relevant information, government 'legalisation' of parliamentary debates which frustrates broader discussions of political legitimacy, and the skewing of debates via the partial public disclosure of information based upon secret intelligence. The book offers solutions to these problems to reinvigorate parliamentary discourse and to address government withholding of classified information. It is essential reading for anyone interested in war powers, the relationship between international law and domestic politics, and the role of the Westminster Parliament in questions of national security.

Sarah Worthington: The Commercial Triple Helix: Contract, Property and Unjust Enrichment (7/2018)

This chapter revisits some of the enduring controversies affecting the interface between contract, property and unjust enrichment. Unless these controversies are settled satisfactorily, the framework for commercial law will be weak.

This chapter ignores the detail of individual commercial doctrines, and instead takes a step back to examine the broad tensions at the boundaries of contract, property and unjust enrichment. One of the foundational problems in commercial law is how to wind together these three strands — contract, property and unjust enrichment — into a strong and effectively functioning structure. At present, there are still too many unresolved conflicts. Perhaps there could be fewer if these four points were noticed.

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