Edinburgh Law School Legal Studies Research Paper Series - April 2023
Fri 21 April 2023
The latest in the Legal Studies Research Paper Series (Vol. 11, No. 2: April 20, 2023) from Edinburgh Law School is now available.
View the full Edinburgh Law School Legal Studies Research Paper Series on SSRN
Regulating Removals: Bundling to Achieve Fungibility in GGR ‘Removal Units’
Justin Macinante, University of Edinburgh - School of Law
Navraj Singh Ghaleigh, University of Edinburgh - School of Law
Reduction in the levels of anthropogenic greenhouse gas (GHG) emissions, while essential, alone will not be sufficient to avoid continuing, damaging climate change impacts. Once the remaining global carbon emissions budget for limiting temperature increase to 1.5°C above pre-industrial levels is exhausted, more GHGs will need to be removed from the atmosphere than are emitted if this target is still to be achieved. Predictions indicate the remaining carbon budget for this target could be exhausted in the next decade. In these circumstances, it is apparent that GHG removal (GGR) technology needs to be scaled up significantly, and development of a market for removal units from GGR projects is one way to do so. As with carbon markets to date, there will be issues to be addressed, not least of which concern the legal and financial nature of the removal units and how removal units generated by different technologies might be fungible. This paper explores these issues, arriving at conclusions that removal units need to be characterised as constituting property and be defined as a financial instrument for the purposes of financial regulation. Heterogeneity of technical characteristics demonstrated by the different GGR methods, which would translate to the units, make determination of parameters by which they might be considered fungible, more problematic. Ultimately, given the public policy issues raised by any GGR market, these will be questions for policymakers. All the same, to help ameliorate difficulties confronting policymakers attempting to frame a GGR market, this paper proposes an alternative of considering the various GGR methods on a pooled or ‘bundled’ basis, rather than individually. This approach imports a number of advantages that enhance the potential for positive public policy outcomes in scaling up the GGR sector.
The Complexities of Comparative Climate Constitutionalism
Navraj Singh Ghaleigh, University of Edinburgh - School of Law
Joana Setzer, London School of Economics & Political Science (LSE)
Asanga Welikala, University of Edinburgh - School of Law
Climate constitutionalism is a relatively novel legal field that has nonetheless adopted a very distinct character. Picking up on the classical liberal tack, it is marked by a distrust of state power as it relates to climate action, or inaction. This is a venerable approach. In his 1967 classic MJC Vile recounts that the “great theme of the advocates of constitutionalism [had been] the frank acknowledgement of the role of government in society, linked with the determination to bring that government under control and to place limits on the exercise of its power.” This mode of distrust has been ported to the climate constitutionalism literature and in particular its focus on adjudication of constitutional rights provisions for climate purposes. As an indicative example, note the introductory words to one recent edited collection: “Our idea in this book is to explore a conception of the constitution conceived as an axiological core of a certain society…This substantial idea of constitution is intimately related to its use by the courts and a set of norms to control power.” This is we argue but one aspect of climate constitutionalism. To advance the proposition, we draw on a variety of legal materials, both primary and secondary. These include the burgeoning climate litigation literature, and critically, the latest comparative constitutional law scholarship, especially as it pertains to constitution making, and constitutional law in jurisdictions not committed to liberal constitutionalism. We also provide the first comprehensive global survey and analysis of constitutional provisions which make specific mention of climate change.
Eppur Esiste!: Legitimacy and Longevity in the EU’s Long Decade of Crisis
Cormac S. Mac Amhlaigh, University of Edinburgh - School of Law
This paper examines the legitimacy of the EU in the context of its ‘long decade’ of crisis. It reviews the conventional methods of assessing the EU’s legitimacy according to input, throughput and output legitimacy (the ‘orthodox view’), arguing that there is a tension between its diagnosis of a crisis-related deterioration in the EU’s legitimacy and the EU’s continued existence and expansion. This tension is explained by reference to the fact that the orthodox view assumes a form of legitimacy based on normative values which are presented as universal and prior to politics, ignores the question of authority and historical context in thinking about legitimacy, and leaves little room for pluralism about what political legitimacy requires. It sketches out an argument for an alternative, more realist, approach to thinking about EU legitimacy in the context of crisis based on the work of Bernard Williams. Williams’s alternative account of legitimacy, ‘political realism’, involves the securing of political authority as a first necessary condition of political legitimacy coupled with the historically-contextualised justification of that authority in normative terms. This approach, the contribution argues, constitutes an improved account of EU legitimacy in the context of crisis in that it provides a better, more realistic, explanation of the EU’s endurance and expansion during this period by showing how disagreement and context shape our understanding of normative values particularly in a complex, evolving, ‘in-between’ governing entity such as the EU.
Bringing together the criminologies of atrocity and serious economic crimes
Andy Aydın-Aitchison, University of Edinburgh - School of Law
The paper reflects on the value of bringing together bodies of criminological research with separate trajectories in a discipline that has experienced dynamic growth, diversification and specialization and a concomitant fragmentation. One risk from fragmentation is that knowledge develops in silos without reference to other schools of thought, but a healthy discipline benefits from the tensions and complementarities when different specialisms come together. It is in that spirit that I offer this short reflection and call for further work. I explore reasons for, and merits of, joint scholarship from criminologists focused on serious economic crime and those dealing with atrocity. The paper argues that even though atrocity crime and serious economic crime do not always accompany one another, they are related conceptually and empirically; and further, that there are enough cases of simultaneous atrocity and economic criminality to justify combining expertise in order better to address the two phenomena. The paper briefly introduces the background to the two specialisms within criminology before detailing the common ground on which they can meet. Finally, I present three examples of recent scholarship at the nexus of serious economic and atrocity crimes focusing on Egypt, South Sudan and Venezuela to demonstrate the benefits of combined scholarship and paths forward for further research.
Solitary Confinement, Torture and Children: Applicable minimum standards
Kasey L. McCall-Smith, University of Edinburgh - School of Law
This brief sets out the basis upon which the detention of children in Scotland could amount to torture or CIDT in breach of a range of legal obligations owed to children. It begins with a concise introduction to the range of laws prohibiting torture that are applicable in Scotland. Next, it considers the use of solitary confinement and at what point this extreme detention practice breaches the threshold of prohibited conduct. Finally, the specific question of children in detention on the Scottish prison estate in young offender institutes (YOIs) is examined in light of a recent survey raising red flags in relation to the number of hours detained children are isolated in their cells each day.
VSI: Employment Law (Oxford, OUP, 2022)
David Cabrelli, University of Edinburgh - School of Law
Work takes up a vast proportion of many people’s time. Although the phrase 'work-life balance' is now commonplace, people work longer hours than ever. The workplace can also be somewhere to develop skills and build friendships. Issues such as equal pay and inclusion have come to the fore, and there is a growing appetite for knowledge of workplace rights and the law governing the employment relationship. This Very Short Introduction provides an overview of the main kinds of employment rights and labour laws around the world. It evaluates the assumptions underpinning these and considers their economic, political, sociological, and social justifications.
Legal Inquiry and Legal Arguments
Claudio Michelon, University of Edinburgh - School of Law
This paper discusses how Del Mar’s conception of legal inquiry sheds light on aspects of judicial decision-making, in particular their use of some argument-types. In turn, the deeper insight into these argumentative practices helps us better understand how legal arguments put forward in authoritatively decided cases relate to future cases, beyond the strict limits of a doctrine of binding precedent. In this contribution I motivate these claims (i) by unpacking the Del Mar’s account of legal inquiry, (ii) by demonstrating that one common and important judicial argumentative practice (the judicial use of inferences to the best legal explanation) cannot be fully captured within the limits set out by a doctrine of binding precedent and, finally, (iii) by showing how Del Mar’s notion of legal inquiry helps us make sense of that particular argumentative practice.