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Legal Studies Research Paper Series Vol. 8, No. 12

The Faculty has published Volume 8 Number 12 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Krzysztof Kornel Garstka & David Erdos: Hiding in Plain Sight? The ‘Right to Be Forgotten’ and Search Engines in the Context of International Data Protection Frameworks(46/2017)

In the wake of the Google Spain (2014) and debate on the “right to be forgotten”, now included in the new General Data Protection Regulation (GDPR), it has become widely recognised that data protection law within the EU/EEA grants individuals a qualified right to have personal data relating to them deindexed from search engines. At the same time, however, this outcome has at times been conceptualised as a uniquely EU/EEA phenomena, perhaps even resulting from one idiosyncratic CJEU judgment. This paper questions such a conceptualisation. Through an analysis of five major extra-EU/EEA international data protection instruments, it argues that most of these could on a reasonable interpretation be read as supporting a Google Spain-like result. Further, and in light of the serious threats faced by individuals as a result of the public processing of data relating to them, it argues that the time is ripe for a broader process of international discussion and consensus-building on the “right to be forgotten”. Such an exercise should not be limited to generalised search engines (which undoubtedly raise some uniquely challenging interpretative conundrums within data protection), but should also encompass other actors including social networking sites, video-sharing platforms and rating websites.

Bobby Reddy: The Fat Controller – Slimming Down the Excesses of Controlling Shareholders in UK Listed Companies(47/2016)

It has become fashionable to extoll the benefits of an incumbent controlling shareholder in companies. Indeed, many of the failures of the stewardship movement, that encourages shareholders in UK listed companies to take an interventionist approach to their investments, have been blamed on the prevalence of dispersed and fragmented ownership models. However, in the publicly listed company sphere, it is debatable whether the virtues of controlling shareholders outweigh the potential detriments, as evidenced by the corporate governance travails of Sports Direct International plc. This paper summarises the principal inherent benefits and detriments, and how these may have presented themselves in the experience of Sports Direct International plc; followed by a normative analysis of the effectiveness of certain regulations ostensibly created to constrain controlling shareholders, together with proposals for reform, arguing that the existing regulations have proved to be insufficient in constraining the controlling shareholder of Sports Direct International plc.

Trevor Allan: Principle, Practice, and Precedent: Vindicating Justice, According to Law (48/2017)

The idea of justice according to law is exemplified by common law thought, in which principle and precedent are interlocked and interdependent. The law is constituted neither by its socially authoritative sources, regarded as social fact, nor by moral judgment about their effects. It is a moral construction of legal practice, interpreting its various rules and arrangements as parts of an integrated scheme of justice. Justice is sought by adherence to practice, understood in the light of the ideals it embodies on correct analysis. Legal obligations are moral obligations and legal reasoning is moral reasoning, but in each case context is critical. The requirements of justice are discerned, in large part, by exploration of the legal tradition in which particular issues arise for decision. It is an internal, interpretative inquiry, drawing on the moral resources of that tradition. Conflict between political ideals must be resolved internally as part of that inquiry; we are obligated to obey the law as correctly determined. These points are reinforced by critique of work by Dworkin, Greenberg, Hershovitz, and Waldron.

Mark Elliott: Judicial Power and the United Kingdom’s Changing Constitution (49/2017)

Judicial power, in any rule of law-based system, is a given. But how much is too much? That question has risen to particular prominence in recent years in the United Kingdom, where the judicial role has changed and grown in notable ways. In doing so, it has attracted criticism from some quarters, with charges of judicial overreach being made. This paper charts the growth of judicial power in the UK and considers how, given the particularities of the UK’s constitutional system, one might go about identifying the proper limits of judicial power.

The paper begin by addressing the key constitutional parameters by reference to which the notions of judicial power and overreach have traditionally been calibrated in the UK. It then proceeds to trace the many senses in which the exercise of judicial power has grown, and considers the forces that have brought such developments about. Against that background, the paper contends that while the evolution of the judicial role evidences a reconceptualization, as distinct from the repudiation, of relevant fundamental constitutional principles, it should not be assumed that the UK constitution’s famous flexibility is limitless. To that end, the paper concludes by examining the recent and controversial judgments of the UK Supreme Court in the Evans and Miller cases, in which, in different ways, the proper limits of judicial power have been tested.


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