Legal Studies Research Paper Series Vol. 9, No. 4

The Faculty has published Volume 9 Number 4 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Simon Deakin: The Use of Quantitative Methods in Labour Law Research: An Asssessment and Reformulation (11/2018)

This paper considers the potential and limits of quantitative approaches to labour law research. It explores the methods used to construct and validate indicators of labour regulation (‘leximetrics’) and those used in the econometric analysis of the effects of labour law rules on employment, productivity and inequality. It is argued that while there is a risk of the misuse and misappropriation of legal indicators, they can provide new evidence on the nature and effects of labour law rules, and thereby contribute to labour law theory as well as to the resolution of some practical issues of regulatory policy.

Eyal Benvenisti & Sivan Shlomo Agon: Is There a Relationship between Shareholder Protection and Stock Market Development? (14/2018)

The ever-intensifying trends of global interdependence have created a complex reality in which decisions of sovereign states, like those of international courts, radiate far beyond their traditional confines, affecting the interests of a range of strangers (third-states, individuals, corporations, and others), without being politically accountable to them. Could and should international courts narrow these accountability gaps by insisting that states take the interests of disregarded strangers into account, and by opening the courts’ own doors to the strangers affected by their judgments? In this article, we analyze the judicial commitment to bridge these accountability gaps towards globally affected others by (1) ratcheting up the substantive and procedural duties that states owe to strangers affected by their national policies, and (2) by facilitating the consideration and voice of affected strangers in the adjudication process itself. In analyzing these two other-regarding judicial responses, we focus on one pivotal site of global judicial governance, the World Trade Organization dispute settlement system (WTO DSS). Based on close analysis of the rich WTO jurisprudence, the article shows that since its inception in 1995, other-regarding considerations have played a significant role in the WTO DSS operation. This WTO’s adjudicative philosophy of regard for others, the article argues, demonstrates an evolving judicial sensitivity to the challenges of accountability and voice generated by globalization at the national and international levels.

Eyal Benvenisti & Mila Versteeg: The External Dimensions of Constitutions (15/2018)

Constitutions are traditionally seen as inherently domestic documents, written by the people, for the people, and reflecting the nation’s highest values. Yet, constitutions also have important external dimensions. Constitutions define the territory of the nation. They articulate the requirements for citizenship. They define war-powers, treaty-making powers, and structure foreign affairs. They commonly demand that governments protect nationals that reside abroad. In some cases, they extend protections to foreigners in need, especially when they are seeking admission.

In a globalized world, this external face of constitutions is changing, reflecting the technological, political, economic, social and cultural changes that continuously reshape a variety of boundaries and determine their nature and level of permeability. Hence questions arise as to whether national constitutions take account of their impact on strangers, whether they should do so, and if so, how do they accommodate their concerns. Our aim in this Introduction Essay and in this Symposium is to draw attention to the external dimensions of constitutions, to the role constitutions play in the global sphere and, ultimately, to the question of responsibility of constitution drafters and interpreters to the outside world. While constitutions are traditionally understood as domestic documents, their significant and multifarious external dimensions raise moral and perhaps also legal questions about the respect that is due to outsiders and their human entitlement to equal concern and respect. We hope that this Symposium serves as the opening for such a debate also among constitutional lawyers.

Matthew H. Kramer: Hart and the Metaphysics and Semantics of Legal Normativity (18/2018)

A number of philosophers in recent years have maintained that H.L.A. Hart in "The Concept of Law" propounded an expressivist account of the semantics of the legal statements that are uttered from the internal viewpoint of the people who run the institutions of legal governance in any jurisdiction. Although the primary aim of this article is to attack the attribution of that semantic doctrine to Hart, the article will begin with some metaphysical matters – the matters of reductionism and naturalism – that often lie behind the development of expressivist approaches to the semantics of normative discourse. After briefly exploring those metaphysical concerns (to which I will return later), the article will begin its main discussion by rehearsing the distinction between the semantics and the pragmatics of utterances. It will then delineate the doctrine of expressivism which the aforementioned philosophers have in mind when they ascribe that doctrine to Hart.

Although I will make reference to a few such philosophers, I will focus chiefly on an article by Kevin Toh that has been the fountainhead of all the subsequent attributions of expressivism to Hart. As will be argued herein, Toh and like-minded philosophers have gone astray in imputing to Hart a semantic version of expressivism. Notwithstanding that Hart’s theory of law can aptly be characterized as expressivist, that characterization is appropriate only when expressivism is understood as an account of the pragmatics of legal statements rather than as an account of their semantics.

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