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Thursday, 28 May 2020

Cambridge Faculty of Law Legal Studies Research Paper SeriesThe Faculty has published Volume 11 Number 5 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Martin Dixon: A Smorgasbord (12/2020)

Reviews significant land law developments, including Alexander Devine Children's Cancer Trust v Millgate Developments Ltd (CA) on whether a restrictive covenant preventing development on land next to a hospice should be discharged, and cases on disputed rights of way, neighbourhood disputes involving adverse possession, Brexit's impact on a lease, and whether a possession order must be set aside before an unjust enrichment claim could proceed.

Martin Dixon: Proprietary Estoppel: The Law of Farms and Families (13/2020)

Discusses the law of proprietary estoppel, including many new cases, Examines the factual context of recent cases and asks how and why so many modern estoppel cases concern agricultural premises.

David Erdos: Google v CNIL – The EU Court of Justice Seeks a via Media on Global Internet Publication and European Data Protection (15/2020)

This case note (published in final form in Cambridge Law Journal (Vol. 79(1)) argues that the recent Court of Justice judgement of C-507/17 Google v CNIL on the territorial scope of "right to be forgotten" deindexing is not necessarily the "major victory" for Google that has been suggested. It is undoubtedly helpful to Google that the Court has rejected the argument that current European data protection requires it to ensure global deindexing. However, the Court's finding that truly geo-blocking must be genuinely robust and that regulators and courts remain empowered to issue fully global deindexing by reference to national standards provide plenty of opportunity for to put further pressure on global operators including Google should Data Protection Authorities and/or others have the will to do so.

Kenneth Armstrong: The Transition (16/2020)

On 1 February 2020, and ten months later than scheduled, the European Union (EU) and the United Kingdom (UK) entered into a period of “transition”; a time between formal membership of the EU and the beginning of a new relationship.

At one level, there is a certain taken-for-granted simplicity to the idea of managing not just an orderly exit of the UK from the EU but also the provision of continuity and certainty while the parties negotiate and decide their future relationship. But at another level the formal terminology and indeed the metaphors used to describe this interim legal framework disclose some deeper tensions around the sequencing and organisation of the withdrawal process as well as the direction of travel of the parties. Even the temporal dimension – the specification of the duration of this temporary legal framework and the mechanism created to extend it, apparently settled during the Article 50 TEU negotiations – forms the stage upon which fundamental political choices are made about what the UK and EU want from their future relationship . If the ambition of negotiators during the Article 50 TEU process was to secure a transition period to avoid a “No Deal” Brexit on 31 January 2020, then the choices made during the transition period determine whether a “Real Deal, No Deal” would occur on 31 December 2020 or alternatively a new legal framework would govern EU-UK relations at the end of the transition period.

The analysis presented here develops in three steps. Section 2 begins with the terminology used to describe the interim legal framework established by Part IV of the Withdrawal Agreement between the EU and the UK.1 Next, section 3 focuses on the metaphor of the transition period as some form of “bridge” between EU membership and a future relationship. Section 4 evaluates the politics surrounding the length of the transition period and the legal issues implicated in determining the duration of transition. Section 5, finally discusses the exercise of the mechanism created by the Withdrawal Agreement for the extension of the transition period.

Kenneth Armstrong: Regulatory Autonomy after EU Membership - Alignment, Divergence and the Discipline of Law (17/2020)

The United Kingdom withdrew from the European Union on 31 January 2020 and immediately entered into a period of ‘transition’. With the EU acquis continuing to apply to the UK during this period, regulatory alignment with the EU is maintained until transition ends. However, this ‘shadow membership’ is not an intimation of the desire of the UK to maintain alignment following transition. Indeed, the UK has stipulated that continuing alignment is incompatible with its direction of travel out of the EU. Rather, in its desire to protect and enhance its ‘regulatory autonomy’, the UK is set to ditch the discipline on its autonomy experienced during membership – a ‘free movement’ discipline – in favour of a looser ‘free trade’ discipline. In response the EU has asserted the need to protect its own autonomy by demanding that the UK commit to ‘level playing field’ requirements aimed at preventing the EU’s balance of market liberalism and regulation and regulatory competition and neutrality from being eroded. The aim of this article is to evaluate whether the ambition to agree a comprehensive economic partnership is compatible with EU and UK attempts to protect their regulatory autonomy.

Bobby Reddy: More than Meets the Eye: Reassessing the Empirical Evidence on US Dual-Class Stock (20/2020)

Dual-class stock enables a company’s controller to retain voting control of a corporation while holding a disproportionately lower level of the corporation’s cash-flow rights. Dual-class stock has led a tortured life in the US. Between institutional investor derision and the exclusion or restriction of dual-class stock from certain indices, one may assume that dual-class structure must be harmful to outside stockholders. However, in this article, the existing empirical evidence on US dual-class stock will be reassessed by contrasting studies that use different measures of performance. It will be shown that although dual-class firms are generally valued less than similar one-share, one-vote firms, they perform as well as, and, in many cases, outperform, such firms from the perspective of operating performance and stock returns. When it comes to dual-class stock, more than meets the eye, and a presumption that dual-class stock is harmful for outside stockholders should not guide policy formulation.

David Erdos: Dead Ringers? Legal Persons and the Deceased in European Data Protection Law (21/2020)

Notwithstanding suggestions that the treatment of legal and deceased person data during European data protection’s development has been broadly comparable, this paper finds that stark divergences are in fact apparent. Despite early fusion, legal persons have been increasingly seen to have lesser and, more importantly, qualitatively different information entitlements compared to natural persons, thereby leaving European data protection with a very limited and indirect role here. In contrast, natural persons and the deceased have not been conceived as normatively dichotomous and since the 1990s there has been growing interest both in establishing sui generis direct protection for deceased data and also indirect inclusion through a link with living natural persons. Whilst the case for some indirect inclusion is overwhelming, a broad approach to the inter-relational nature of data risks further destabilizing the personal data concept. Nevertheless, given that jurisdictions representing almost half of the EEA’s population now provide some direct protection and the challenges of managing digital data on death continue to grow, the time may be ripe for a ‘soft’ recommendation on direct protection in this area. Drawing on existing law and scholarship, such a recommendation could seek to specify the role of both specific control rights and diffuse confidentiality obligations, the criteria for time-limits in each case and the need for a balance with other rights and interests which recognises the significantly decreasing interest in protection over time.


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