Legal Studies Research Paper Series Vol. 9, No. 6

The Faculty has published Volume 9 Number 6 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Andrew Sanger & Sir Michael Wood: The Immunities of Members of Special Missions (22/2018)

This paper examines the history, law and procedure relating to special mission immunity.

Jacob Eisler: Partisan Gerrymandering and the Constitutionalization of Statistics (23/2018)

Data analysis has transformed the legal academy, and is now poised to do the same to constitutional law. In the latest round of partisan gerrymandering litigation, courts have used quantitative tests to define rights violations and strike down legislative districtings across the country. Statistical thresholds have thus been enshrined as constitutional protections, and courts have recast themselves as agents of discretionary policy.

This Article describes how this revolutionary change subverts the judicial role and undermines the rule of law. Constitutional law ensures that government conduct respects principles of neutrality. Government action is unconstitutional when it has intentionality that violates these principles. In other words, constitutional rights are ‘input-monitoring’, whereas data analysis can only produce informational outputs. Because quantitative methods cannot identify the inputs that violate principles, they are inadequate to define constitutional wrongs. The only appropriate role of metrical analysis is to provide evidence of any rights-violating intentionality. If quantitative outcomes are used to define rights, courts act as quasi-regulatory entities that compete with democratically elected branches.

The law of partisan gerrymandering needs a new principle, not new metrics. The best principle to identify partisan gerrymandering is the right to fair representation, which is violated when legislatures seize partisan advantage in democratic process. Quantitative analysis should have the sole function of proving that alleged partisan gerrymanders seek such advantage.

This Article thus identifies a novel and troubling trend in constitutional law and describes how it dominates a topic of immediate practical importance. It then offers a general framework for conceptualizing rights protection and applies it to this pressing doctrinal issue.

Mark Elliott: Sovereignty, Primacy and the Common Law Constitution: What Has EU Membership Taught Us? (24/2018)

This chapter reflects on the notion of parliamentary sovereignty as it is understood in the UK in the light of the Supreme Court's judgment in R (Miller) v Secretary of State for Exiting the European Union, and, more generally, against the backdrop of the UK's membership of the European Union. In particular, in the paper I explore substantive questions about the accommodation of the EU primacy doctrine by the domestic constitutional system and broader questions about the way in which these matters have been dealt with at the level of constitutional theory. In doing so, I pay particular attention to the question whether this episode in UK constitutional history teaches only specific lessons about how EU law has been accommodated — lessons that may be of little if any relevance when or if the UK fully withdraws from the EU — or lessons of a more enduring kind that will remain pertinent long after withdrawal. I argue that it is lessons of the latter type that can be derived from attempts to understand the relationship that has existed this last half-century or so between the domestic and European legal orders. However, I argue too that the extraction of those lessons involves a degree of supposition and inference that speaks volumes about the way in which fundamental constitutional questions are (and are not) confronted in the UK. The UK’s European sojourn is thus revealing, but only to a degree, of the substance of the domestic constitution. And, to the extent that it is less than revealing, the opacity that we encounter serves not simply to obscure the substance but to illuminate something more visceral: namely, a preference that can be discerned within UK constitutional adjudication, at least when it comes to the very biggest questions, for constructive ambiguity over conceptual clarity.

Paul Daly: Updating the Procedural Law of Judicial Review of Administrative Action (25/2018)

The substantive law of judicial review of administrative action has grown in leaps and bounds in recent decades. However, the procedural law has lagged behind. On issues such as the content of the record on judicial review applications, the extent to which administrative decision-makers can participate in judicial reviews of their decisions, superior court review of federal prison decisions and tribunals’ capacity to reconsider their decisions, Canadian courts have recently come under pressure to update the procedural law to bring it into line with the substantive law. I develop a set of considerations which courts ought to keep in mind when updating the procedural law. Courts should not automatically assume that the procedural law of judicial review must move in lockstep with its substance. Wary of the dynamic relationship between procedure and substance in the common law tradition, mindful of constitutional fundamentals and sensitive to the need to develop the common law in an incremental fashion, consistent with those values that are immanent in the law, the judges should exercise caution in reshaping the procedural law of judicial review of administrative action. I apply the set of considerations to four areas of procedural law, concluding that Canadian courts have struggled with some issues – tribunal reconsideration and tribunal standing – but have done reasonably well on others – superior court jurisdiction over federal prisons and the content of the record. Indeed, the latter provides a model for the future development of the procedural law of judicial review of administrative action by Canadian courts.

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