Legal Studies Research Paper Series Vol. 16, No. 5

The Faculty has distributed Volume 16 Number 5 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Raffael N Fasel: A Defence of the Species Membership Approach (18/2025)

This article responds to challenges raised by John Olusegun Adenitire, Alasdair Cochrane, and Maneesha Deckha in this special issue on my book More Equal Than Others: Humans and the Rights of Other Animals, specifically targeting my theory of the Species Membership Approach (SMA). According to the SMA, legal rights and other legal entitlements should be granted to non-human animals on the basis of their species membership, not their individual capacities. The article first takes on a principal competitor to the SMA: Adenitire and Cochrane's sentience-based theories. I argue that these theories do not do enough to show that sentience is a binary capacity that can provide a solid foundation for basic equality. As a result, they are unlikely to satisfy many human rights proponents. Second, I address Deckha's challenge that the SMA manifests a problematic human-first mindset which reinforces existing species privileges. I respond by demonstrating that the SMA does not, in fact, adopt a human-first mindset, and that even my book's more specific discussion of how human rights could be temporarily prioritised does not make my theory problematically anthropocentric.

Raffael N Fasel: A Theory of Limited Constituent Power (19/2025)

A growing chorus of scholars argues that the concept of constituent power has overstayed its welcome and should be abandoned. This article shows that such calls are premature. The grievances voiced by the sceptics are real: the concept of constituent power is susceptible to abuse in practice; its traditionally national focus is ill-suited to a globalised world; and it can serve to romanticise the origins of elite-created constitutions. However, these grievances can be addressed without discarding the concept itself. What must be relinquished is not the concept of constituent power, but a fundamental dichotomy that lies at the heart of many constituent power theories: the dichotomy between will (the decisions of constituent power) and norm (the moral or legal standards limiting such decisions). I argue that will and norm are, in fact, inseparable in the context of constituent power. Challenging this dichotomy opens a promising path for reconceiving constituent power as a bounded power. This article develops such an account – I call it pouvoir constituant limité – which meets the grievances by viewing constituent power as a constrained power whilst preserving the concept’s democratic essence.

Philip Murray & Paul Warchuk: Ouster Clauses and the Common Law: a Historical Reappraisal (20/2025)

This article traces the development of English administrative law's approach to ouster clauses, re-assessing the idea that ouster clauses have always been treated by the courts as so constitutionally repugnant that they are to be given the narrowest of interpretations. We show how the idea of common-law antagonism to ouster clauses is fairly recent, influenced especially by the writings of Sir William Wade and his interpretation of Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147. While some later decisions of the House of Lords and Supreme Court, most especially R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22, have perpetuated the idea of constitutional repugnancy, closer attention to the common law's history allows for a more nuanced understanding of the courts' attitude to statutory exclusions of review. It is in this context that recent cases on ouster clauses can be seen as consonant with administrative law's traditionally deferential approach.

Kathleen Liddell, Mateo Aboy, I. Glenn Cohen & Erik Hahn: Cross-border telemedicine - A reason to 'smile'? also comment on ECJ, judgment of 11 September 2025 -C-115/24 (UJ/Austrian Dental Association) (22/2024)

Digital health services increasingly cross-national borders, yet legal uncertainty persists over how to regulate telemedicine across jurisdictions. In September 2025, the European Court of Justice delivered a landmark ruling on the case ‘DrSmile’ (C-115/24), clarifying the EU Cross-Border Healthcare Directive 2011/24/EU and defining the difference between purely remote and mixed ‘hybrid’ models of telemedicine. The Court held that a provider established in one Member State may deliver telemedical care across the EU under the professional and patient-safety rules of the provider’s country, while any in-person treatment remains governed by the patient’s country law. It further defined telemedicine as care delivered entirely at a distance by electronic means and confirmed that the provider’s country-of-origin rule extends beyond reimbursement; in particular to licensing, oversight, and safety standards. We analyse these rulings in the broader context of EU regulatory fragmentation and cross-border consumer protection, evaluating their implications for patients, telemedicine businesses, traditional practitioners, and public health policymakers. Finally, we consider how this decision could reinforce the importance of international standards for digital health governance and the lessons it offers to the US, UK, and other non-EU countries.

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