We are delighted to announce the second issue of the ÐÓ°ÉÂÛ̳ Law Legal Studies Working Paper Series for 2020.
In this issue, Joanne P. Braithwaite and David Murphy (WPS ) discuss the EU regime for client clearing of OTC derivatives and engage with the difficulty some clients have in accessing clearing; they consider the EU policy response to this issue, in particular in the so-called EMIR Refit and its fair, reasonable, non-discriminatory and transparent (or 'FRANDT') requirements, exposing the difficulty of meeting the desired policy objectives using current means; finally, the paper suggests more effective ways in which this area of financial markets infrastructure regulation may be revised; Raffael N. Fasel (WPS ) draws on Emmanuel Joseph Sieyès’s account of constituent power to challenge the common notion that constituent assemblies have unconstrained powers, and discusses how and to what extent Sieyès’s account can be used to make sense of the constraints that will be imposed on the Chilean constituent assembly; David Kershaw (WPS ) offers a historical perspective on the nature of prerogative powers, focusing on the Glorious Revolution in 1688 as a ‘historically-first’ constitutional event to show how prerogative powers were reconstituted in 1689 by the Declaration and Bill of Rights as statutory delegated powers; Grégoire Webber (WPS ) examines the arguments presented in the essay ‘Can there be a written constitution?’ by the late John Gardner, interrogating Gardner's strategy of answering his title question by reference to HLA Hart's secondary rules and suggesting that, by doing so, certain aspects of a constitution may be closed off from consideration or obscured from view; Grégoire Webber and Paul Yowell (WPS ) respond to careful and challenging engagement with their recent book, 'Legislated Rights: Securing Human Rights through Legislation' (CUP 2018) by exploring the seven themes of: (1) the neglect of the legislature from court-centred modes of human rights discourse; (2) the central case method; (3) the relevance of real world legislatures to the central case method; (4) populism and non-central cases; (5) the good legislator; (6) the specification of rights and the general welfare; and (7) constitutional rights and judicial review; Noam Gur and Jonathan Jackson (WPS ) provide a collaborative study that first offers an empirical analysis of law-related attitudes which points to an interactive relationship between different predictors of legal compliance – that is, perceived moral content of specific laws seems to amplify (not just add to) the motivational force of other perceived qualities in the operation of legal authorities, such as procedural justice and lawfulness; second in a philosophical discussion of the moral status of the rule of law they identify a parallel (similarly interactive) modality in the way that form and content mutually affect the value of the rule of law.