Legal Studies Research Paper Series Vol. 12, No. 2

The Faculty has published Volume 12 Number 2 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Eyal Benvenisti & Doreen Lustig: Revisiting the Memory of Solferino: Knowledge Production and the Laws of War (1/2021)

During the course of the second half of the nineteenth century, the rules regulating the conduct of armies during hostilities were internationally codified for the first time. The conventional narrative attributes the codification of the laws of war to the campaign of civil society, especially that of the founders of the Red Cross – Henry Dunant and Gustav Moynier. In what follows, we problematize this narrative and trace the history of the construction of this knowledge. We explore how the leading figures of the Red Cross, who were aware of the shortcomings of their project, were nonetheless invested in narrating its history as a history of success. Their struggle to control the narrative would eventually confer the International Committee of the Red Cross (ICRC) with considerable interpretive and agenda-setting authority in the realm of the laws of war. We dwell on the meaning of this conscious exercise in knowledge production and its normative ramifications.

Brian R. Cheffins & Richard Williams: Team Production Theory Across the Waves (2/2021)

Team production theory, which Margaret Blair developed in tandem with Lynn Stout, has had a major impact on corporate law scholarship. The team production model, however, has been applied sparingly outside the United States. This paper, given as part of a symposium honoring Margaret Blair’s scholarship, serves as a partial corrective by drawing on team production theory to assess corporate arrangements in the United Kingdom. Even though Blair and Stout are dismissive of “shareholder primacy” and the U.K. is thought of as a “shareholder-friendly” jurisdiction, deploying team production theory sheds light on key corporate law topics such as directors’ duties and the allocation of managerial authority. In particular, the case study offered here shows that board centrality – a key element of team production thinking -- features prominently in U.K. corporate governance despite Britain’s shareholder-oriented legal framework. The case study also draws attention to the heretofore neglected role that private ordering can play in the development of team production-friendly governance arrangements.

Mark Elliott: Constitutional Adjudication and Constitutional Politics in the United Kingdom: The Miller II Case in Legal and Political Context (3/2021)

For a number of years there has been nothing at all unusual about the United Kingdom finding itself in a state of constitutional upheaval; indeed, for some time, this has been the UK constitution’s default setting. This has sometimes been as a result of long-anticipated and carefully planned reforms, such as the enactment, in the late 1990s, of legislation to give domestic effect to the European Convention on Human Rights and to introduce devolved systems of government in Scotland, Wales and Northern Ireland. In contrast, more recent upheaval is attributable to often unexpected reactions to often unexpected events. For example, legislation making substantial changes to the devolution scheme in Scotland – providing, among other things, for the constitutional permanence of the Scottish Parliament and Government – was enacted to implement panicked promises made by UK politicians in the dying days of the Scottish independence referendum campaign, at which point a vote in favour of independence seemed a distinct possibility. And then, needless to say, there is Brexit – about which it is almost impossible to be guilty of hyperbole when describing its constitutional implications, so numerous and potentially far-reaching are they.

This article makes no attempt to catalogue those implications. But it does take as its focus a landmark judgment rendered against a dramatic, Brexit-related backdrop. In the late summer of 2019, the UK Government sought to suspend Parliament, precipitating a Supreme Court judgment holding the attempt to be unlawful, clearing the way for the immediate reopening of the legislature. These legally and constitutionally explosive developments took place in a politically febrile atmosphere, with the UK apparently hurtling towards the cliff-edge of leaving the EU without any withdrawal agreement, the Government seeking to suspend Parliament, and Parliament, in its turn, racing – successfully, as it happens – to enact legislation requiring Ministers to seek an extension to the EU exit process.

It was in these unprecedented circumstances that the Supreme Court issued its incendiary judgment in the Miller II case. In this article, I examine that judgment and contend that, contrary to arguments advanced by the Government in the course of the litigation and contrary to criticism that the judgment has attracted, the Supreme Court arrived at the correct conclusion and did so on the basis of legal and constitutional reasoning that was eminently sound. In advancing this argument, I contend that the Supreme Court’s judgment was at once both orthodox and path-breaking. I also contend that, to the extent that it may have been legally and constitutionally innovative, such innovation was anchored in a secure foundation of fundamental principle. I then conclude by stepping back from the detail of the judgment to consider its broader implications. Before doing any of those things, however, I begin with a sketch of the issues that were at stake, and of the judgment that the Supreme Court delivered, in the Miller II case.

David Erdos: Identification in EU Data Protection Law (4/2021)

Although the new EU data protection framework includes new pan-European limits based on notions of non-identification, these provisions cannot be construed in a sweeping or linear fashion. Non-identified data can only include information which is not being used to target a specific individual on- or offline and which does not readily and manifestly enable such pinpointing. Although GDPR controllers cannot generally be obliged to render such data identified, they must stand ready to do so to facilitate reactive subject rights. However, they have no design obligation to ensure this is easy. Identifying or authenticating whether a particular individual is a specific data subject and considering whether other data subjects are also linked to the information are separately regulated. With the exception of the GDPR rights to data portability and a copy of personal data, the latter is in principle left to national derogation. Regarding the former, both the GDPR and LED allow controllers to require further information where reasonably required to identify a claimant of reactive rights. However, controllers retain a fundamental duty to organise their processing to secure data obligations and rights. Controllers can generally only resist reactive rights claims where they can positively demonstrate that the request is manifestly excessive.

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