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Edinburgh Law School Legal Studies Research Paper Series - October 2020

Tue 27 October 2020

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The latest in the Legal Studies Research Paper Series (Vol. 8, No. 5: Oct 20, 2020) from Edinburgh Law School is now available.

View the full Edinburgh Law School Legal Studies Research Paper Series on SSRN

Papers include: 

Where’s the ‘E’ in Constitution? A European Puzzle
Edinburgh School of Law Research Paper No. 2020/14

Neil Walker, Edinburgh Law School

Abstract: Why have the constitutions of capitalist states traditionally paid limited regard to the economy, and why has the European Union ‘constitution’ accorded the economy a more prominent role? We address this question by reference to the variable prevalence of different models of the place of economics in constitutional thought and practice at the two sites. An influential early model treats the economic dimension as a derivative feature of the predominantly political constitution of the state, explaining both the low visibility of economics in the state constitution and the lower visibility of constitutionalism in the economy-centred supranational project. Beyond the derivative model, economic constitutionalism may be understood in constitutive terms, or as a sectoral, constructed, prior or supplantive feature. These alternative models, in shifting combination, supply a better factual account of EU economic constitutionalism, but do not necessarily defeat the normative case for the adaptation of a fuller political constitutionalism to the requirements of the EU.

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The Crisis of Democracy in a Time of Crisis
Edinburgh School of Law Research Paper No. 2020/15

Neil Walker, Edinburgh Law School

Abstract: The word ‘crisis’ has two different shades of meaning. It can refer to an unstable situation in political or social affairs that persists and intensifies over the relatively long term. Closer to the original Greek meaning of krisis, a crisis also refers to a traumatic episode or condition whose resolution remains unclear and replete with danger. The crisis of democratic leadership is a crisis of the first sort – a slow burn tending towards meltdown. The coronavirus pandemic is a crisis of the second sort – a traumatic event spiralling into an uncertain and perilous future. The paper argues that the crisis of the first sort is currently feeding into and feeding off the crisis of the second sort. COVID-19 has had an extraordinary effect on the political landscape. Its challenge democratic leadership and to the paradigm of representative democracy more generally may be framed according to a number of key features. First, the pandemic may be considered as a premonitory event. Secondly, it poses various acute problems of collective action, both within and beyond the polity. Thirdly, it highlights the dense interconnectedness of the issues that form our political agenda. And fourthly, it suspends many aspects of social and political life, both pausing our capacity to act and interrupting the flow of the world we act upon. Each of these features has double-edged implications for our capacity to steer our democracies. Each threatens to reinforce democratic impotence, but at the margins each also offers some hope of democratic renewal.

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The Architecture of Decentralised Finance Platforms: A New Open Finance Paradigm
Edinburgh School of Law Research Paper No. 2020/16

Emilios Avgouleas, Edinburgh Law School
Aggelos Kiayias, University of Edinburgh - School of Informatics

Abstract: The evolving merger of payments technology with technology underpinning investment markets’ infrastructure can have a great impact on the mode of supply of financial services, notwithstanding technical, legal and regulatory restrictions. One-stop-shop multi-purpose and multi-asset platforms will be a key characteristic of post-COVID-19 finance bringing a radical transformation of the marketplace. Anticipated benefits range from a drastic reduction of intermediary rents and transaction costs to repatriation of investor control and alteration of today’s narrow asset allocation strategies. To facilitate this transformation, we offer a model of decentralised finance that goes far beyond so-called “autonomous” finance. As the technical and regulatory challenges of increasing automation and integration in the supply of investment services will be considerable, a proactive approach is required to resolve these problems. Integrated decentralised platforms are the most promising route to: (a) counter the competitive threat of BigTech, (b) reform investment industry’s narrow asset allocation practices whose fragility has been badly exposed by the pandemic, and, (c) spread equally the dividend of financial development.

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Understanding Police Work in the Remote Northern isles of Scotland: The Extraordinary Ordinariness of Island Policing
Edinburgh School of Law Research Paper No. 2020/17

Anna Souhami, Edinburgh Law School

Abstract: Remote islands are at the periphery of thinking about policing both in theory and in practice. Despite a rich tradition of police research, studies of rural policing are rare, and of policing in remote areas rarer still. Consequently, both the conceptual development of police scholarship and the development of operational policing and strategy have both been underpinned by a particular model of urban environment. This paper presents early findings from a major ethnographic study of policing in the remote Northern islands of Scotland, and considers what, if anything, is distinctive about policing in remote small islands.

Drawing on over 600 hours of ethnographic fieldwork of policing and island life, this paper describes the challenges and experiences of policing in small remote islands and the form of policing these produce. It argues first, the extraordinary conditions of remote island police work engender a style which emphasises under-enforcement, transparency, and in particular a striking empathy and humanity. Second, while this police style is felt by officers to be distinctive, it is in fact at the heart of all police work. Remote islands therefore present a paradox: their extraordinary conditions result in ordinary policing. And third, the perception that remote island policing is unusual suggests that what needs explanation is not island but urban policing.

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What Does it Mean for a Data Subject to Make their Personal Data “Manifestly Public”? An Analysis of GDPR Article 9(2)(e)
Edinburgh School of Law Research Paper 2020/18

Edward Dove, Edinburgh Law School
Jiahong Chen, University of Nottingham

Abstract: This article investigates an under-discussed and potentially significant provision in the EU General Data Protection Regulation, namely Article 9(2)(e), which permits processing of special category personal data if the “processing relates to personal data which are manifestly made public by the data subject”. We specifically consider the application of this provision in the context of genetic data and open data sharing (i.e. data that can be freely used, re-used, and redistributed by anyone), illustrating this by way of several cases of initiatives that seek to share genetic data. We query whether by uploading one’s own genetic data onto the internet, a person has made their data “manifestly public” within the meaning of the GDPR. Our response to this query is that in general, the answer should be no, but it remains possible. We argue that Article 9(2)(e) must be construed narrowly; outside of clearly defined contexts, it would be legally inappropriate to invoke and rely upon this manifestly public self-disclosure exception in data protection law. Our narrow interpretation of the provision aligns with the limited guidance made available from data protection authorities. As part of this argument, we propose a legal test that must be satisfied before Article 9(2)(e) may be lawfully invoked, grounded in the intent of the data subject.

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The (Self) Protection of Civilians in South Sudan: Popular and Community Justice Practices
African Affairs, Vol. 119, No. 476, 2020, pp. 370-394
Edinburgh School of Law Research Paper No. 2020/19

Emily Paddon Rhoads, Swarthmore College
Rebecca Sutton, Edinburgh Law School

Abstract: Over the past decade, a body of scholarship on civilian self-protection (CSP) has emerged, advancing understandings of civilian agency in war. In this article, we argue that CSP has been conceptualized in a narrow manner, reflecting the nascent status of the field. Scholars have focused on responses to threats directly related to the dynamics of conflict, physical in nature, and caused by the presence of armed groups. Using the case study of the Protection of Civilians (PoC) sites in South Sudan and drawing on over 150 interviews, we identify one type of protective response neglected in the literature: community and popular justice. Although the PoC sites provide a measure of protection, residents face a range of daily threats that are indirectly related to the conflict, such as crime. In this context, community justice emerged as a natural response, an overlooked yet vital form of CSP that addresses immediate protection needs and fulfills a social ordering function. By conceiving of justice in this way, this article aims to deepen understanding of civilian agency and start a conversation with scholars and practitioners about the boundaries of (self) protection.

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