Legal Studies Research Paper Series Vol. 9, No. 14
The Faculty has published Volume 9 Number 14 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.
This issue includes the following articles:
Brian Sloan: Solidarity Across Generations in England and Wales (60/2018)
This paper was presented at the International Academy of Comparative Law’s XXth General Congress in Fukuoka, at a session on solidarity across generations. It comprises responses to a questionnaire drafted by Professor Eri Kasagi. Topics covered include general questions on society and family, pensions, social security, social assistance and care, and employment. The final version will be a traditional academic paper to be published in an edited collection by Springer.
Kenneth Armstrong: Transition Time: 3 Options for Extending the Transition Period (61/2018)
The draft Withdrawal Agreement creates a transition period which will end on 31 December 2020. During this period, the United Kingdom will cease to be a Member State of the European Union but will still comply with EU law pending the entry into force of a new UK-EU partnership agreement. It is becoming clear that the fixed end-point of 31 December 2020 is unrealistic to allow negotiations to reach a new partnership agreement. This is also significant because the UK considers that it is through a new economic relationship that a hard border on the island of Ireland will be avoided. In order to guarantee that no new frontier controls are introduced, the EU has insisted that a ‘backstop’ arrangement is written into a Withdrawal Agreement. The difficulties in defining this backstop risk jeopardising the conclusion of Article 50 negotiations, leading to a potential ‘No Deal’ Brexit. This working paper argues that a different approach to the transition period is needed and sets out three possibilities:
(1) an optional extension;
(2) an open or rolling transition with an exit mechanism;
(3) an extended transition and implementation facility.
The paper concludes that politically and legally, agreement on an extended transition and implementation facility has the potential to offer the necessary flexibility and certainty to finalise negotiations on a Withdrawal Agreement while creating sufficient time for new agreements on the future relationship to be negotiated and agreed.
Brian R. Cheffins: The Public Company Transformed: Introduction (62/2018)
The American public company has undergone a fascinating transformation since the mid-20th century. Up to this point, however, a detailed analytical synthesis of the changes involved has been lacking. The Public Company Transformed (Oxford University Press, 2018) correspondingly examines the history of the American public company from the managerial capitalism era through to today, using as the primary reference point senior corporate executives and the constraints affecting the choices available to them. This introductory chapter to the book begins by providing an overview of the basic chronology involved. Next, the book’s contribution to the vast literature on corporations is spelled out. Case studies that move the analysis from the abstract to the specific follow. The focus is on two iconic American business enterprises, AT&T and General Electric. With both being prominent throughout the period the book covers, the case studies illustrate in a concrete fashion key market and regulatory trends the remainder of the book explores. This introduction to The Public Company Transformed concludes with an overview of the book’s remaining chapters.
P G Turner: Fusion and Theories of Equity in Common Law Systems (63/2018)
The fusion of law and equity in common law systems was a crucial moment in the development of modern Anglo-American law, with implications for the procedural, substantive and remedial aspects of law. This paper will introduce a volume of essays in which scholars undertake historical, comparative, doctrinal and theoretical analysis that aims to shed light on the ways in which law and equity have fused, and the ways in which they have remained distinct even in a ‘post-fusion’ world.
The central concern of this paper lies in two facts. The first is that the presence of equity in common law systems poses fundamental questions. What is the place of equity in a modern common law system? Is the purpose of equity, as a distinct ingredient of common law systems, spent? Should equity be distributed through the law? If equity should be a distinct ingredient of common law systems, in what form? The second is that fusion (or merger or union) has become the means by which lawyers address those basic questions.
Helpful answers to these basal questions have become more remote as theories of equity have become constrained by the terms in which fusion is discussed. How can the situation be improved? This chapter suggests that a newly widened perspective is needed. The constitutional place that has been assigned to equity in common law systems must be acknowledged and accommodated. And any modern theory of equity must be composite rather than simple or unitary. Also important to appreciate is the practical significance of how fusion is discussed, and how equity theories are formed, in the thinking of lawyers and the work of the courts. To illustrate that practical point, illustrations are given of the accidental fusion of law and equity through the unthinking assimilation of modern equitable claims to the common law forms of action finally abolished in England in 1875.