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Thursday, 17 December 2015

Cambridge Faculty of Law Legal Studies Research Paper SeriesThe Faculty has published Volume 6 Number 12 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Oliver Butler: The Expanding Scope of the Data Protection Directive: The Exception for a 'Purely Personal or Household Activity (54/2015)

This case note comments on the judgement of the Court of Justice of the European Union (CJEU) in C-212/13 Ryneš v Úrad pro ochranu osobních údaju. It argues that the CJEU has imposed a spatial gloss on the interpretation of the exception for data processing “in the course of a purely personal or household activity”: Article 3(2) of the Data Protection Directive 1995. It criticises that spatial gloss as both too broad and too narrow. Too broad because the logic of the decision potentially captures many other forms of video-based recording and too narrow because it appears to exclude data protection from CCTV in the purely private setting, ignoring circumstances where individuals from outside the household might legitimately enter and be subject to intrusive monitoring. It examines the consequences of that gloss for UK data protection law and guidance issued by the UK Information Commissioner’s Office (ICO). This note argues that the implications of the reasoning in Ryneš could extend beyond these narrower changes and represent part of wider expansion of data protection through the interpretation of the CJEU, which has pursued a course of broad interpretation for provisions of the Directive and narrow interpretations of its exceptions. The note questions the desirability of this extension.

Catherine Barnard: The Calm after the Storm: Time to Reflect on EU (Labour) Law Scholarship Following the Decisions in Viking and Laval (55/2015)

When the Finnish Seamen’s Union and the Swedish Electricians Union threatened strike action, and in the case of the Swedish electricians union, did go on strike, the officials involved could never have contemplated the seismic effects their decisions would have on the evolution of EU law and, indirectly, on the evolution of EU law scholarship. The Finnish trade unions in Viking and the Swedish unions in Laval were essentially asserting the right to strike under domestic law. This brought them face to face with the EU’s fundamental freedoms -- of establishment and services.

The aim of this chapter is not to rehearse the arguments for and against the position taken by the Advocates General and then the Court in the two cases. Rather, I wish to consider first, how these cases -- and the subsequent developments -- have been considered in the literature and second, what this tells us about the current state of EU law academic writing. The chapter will argue that there are four phases of response to major legal events such as the decisions in Viking and Laval and, at each phase, the literature has something new and different to offer. I therefore consider, but ultimately take issue with, some of the criticisms levelled at EU law scholarship by van Gestel and Micklitz in their stimulating article ‘Why methods matter in European Legal Scholarship’.

Brian Sloan: A Hippy-Hippy Clean Break? (56/2015)

This paper is a case note on the Supreme Court’s decision in Vince v Wyatt [2015] UKSC 14, which concerned the case of a poverty-stricken New Age traveller turned multi-millionaire whose former wife appeared years after divorce to claim a share of his subsequently acquired wealth.

Marc T Moore: The De-Privatisation of Anglo-American Corporate Law? (57/2015)

This chapter examines and challenges the dominant academic portrayal of Anglo-American corporate law as an aspect of private law, and argues for a re-characterisation of the subject that reflects the centrality of public regulation to its core dynamics. It first explores the purported ‘privity’ (or privateness) of corporate law as it is most commonly understood and taught within the English-speaking world. It highlights an apparent ‘de-privatisation’ trend in Anglo-American corporate law over recent years, including the impact of increasing federalisation of corporate law in the United States under the Sarbanes-Oxley and Dodd-Frank reforms, and also the effect of increasing juridification of corporate law in the United Kingdom at both domestic and EU level. It notes that, insofar as these more publicly oriented aspects of corporate law have tended to be rationalised under the separate head of securities (or capital markets) law reforms, their existence has generally not been seen as threatening the continuing private dynamic of ‘corporate’ law in the narrowly defined sense. As against this, however, it argues that once the inherent artificiality of the conventional corporate/securities law divide is recognised, the prevailing academic characterisation of Anglo-American corporate law as a private phenomenon is rendered descriptively and normatively unsustainable.

Matthew Dyson: The Future is a Foreign Country, They Do Things Differently There (58/2015)

What must the law be in the future and how can we make it so? Are we thinking enough about the future of law, which will almost certainly be lived differently to today? Or are we trying always to fix the present, doomed to aim for a target that has already passed? If our memory tricks us into thinking we know where we have come from, what determines our perspective on the future?

The paper therefore addresses two issues in English and Welsh law:

1. the distinctive identity of the Law Commission;
2. how to understand the “law” of tomorrow.

By looking at law reform outside of just England, the paper also asks whether, if the past is a different country, might the future be one too? If so, are there other countries today which can help us understand that future and what kind of law reform bodies we will need for it?


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