Legal Studies Research Paper Series Vol. 9, No. 12

The Faculty has published Volume 9 Number 12 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

John W.F. Allison: Minimising Magna Carta and Modernising Exposition of the Rule of Law in the English Historical Constitution (48/2018)

Dicey’s view of the English constitution as historical was traditional, but he promoted, and imported to that constitution, a history that was comparative, critical and modernist. His promotion of history as comparison affected his treatment of Magna Carta and his view of its importance to the rule of law. Provisions of Magna Carta provisions are compared and contrasted with Dicey’s exposition of the rule of law to explain his disdain for Magna Carta’s importance, to show the extent to which his exposition of the rule of law marked its modernisation in the English historical constitution, and to illustrate Diceyan history as comparison. The historical comparison serves as an illustration with which to consider the value of history as comparison - for Dicey in his treatment of Magna Carta and for normative interpretivists in drawing upon his rule of law.

John W.F. Allison: Turning the Rule of Law into an English Constitutional Idea (49/2018)

In response to highly selective recent treatment, Dicey’s rule of law contribution is presented, not merely as coining or popularising the well-known phrase, but as multi-faceted. It was the express, methodical and comprehensive incorporation of the rule of law as one of two pervasive constitutional principles, which accorded with his various nineteenth-century expectations or understandings of the English constitution. They are distinguished as expectations of method, national specificity, remedial effectiveness, congruity of first principles, and historicity. The chapter explains to what extent Dicey’s exposition of the rule of law, relative to comparable earlier leading writings on the English constitution, answered those expectations. Dicey’s expectation of congruity of the constitution’s first principles is shown to have been of particular strength, importance and distinctiveness. It affords normative interpretivists good reason both to claim continuity with one prominent facet of Dicey’s contribution and to avoid suspicion of interpretivist distortion by unnecessarily overstating that continuity or by ignoring other such facets.

Sarah Nouwen & Warner Ten Kate: The Globalisation of Justice: Amplifying and Silencing Voices at the ICC (51/2018)

Part of the book Mobilising International Law for “Global Justice” (edited by Jeff Handmaker and Karin Arts, forthcoming with Cambridge University Press), this chapter argues that the very first situation before the International Criminal Court is illustrative of how the globalisation of international criminal justice amplifies some voices while silencing others. The chapter shows how in northern Uganda the globalisation of criminal justice offered a site for what Martti Koskenniemi has called ‘the politics of re-description’ and we give four examples: (1) the struggle between a military approach and reconciliation efforts in the period prior to ICC intervention; (2) the ICC referral as a way to re-describe the conflict and to continue a military approach; (3) the Juba peace process as a negotiation between legal and other approaches and (4) the post-Juba period, in which a political agreement is approached legalistically.

Brian R. Cheffins: Rumours of the Death of the American Public Company are Greatly Exaggerated (53/2018)

The public company has historically been a crucial element of the American economy. Various predictions have been made recently that the public company’s future is bleak. This essay maintains these gloomy conjectures are erroneous. Companies leave the stock market by way of public-to-private buyouts with some regularity but large firms are rarely affected. Prosperous start-up companies are delaying joining the stock market but nevertheless usually end up in the public domain. There are considerably fewer public companies now than there were twenty years ago. Based, however, on the ratio of aggregate market capitalization to gross domestic product, the public company is currently as important relative to the U.S. economy as it ever have been, if not more so.

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