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  • S Theil, 'Prorogued until October? How the Prorogation Act 1867 could be used to sideline Parliament for good' (2019) Verfassungsblog
    The British government under Prime Minister Boris Johnson yesterday secured a prorogation of Parliament from the Queen. Barring an intervention from the courts, Parliament will stand prorogued no earlier than Monday 9th September and no later than Thursday 12th September 2019 to Monday 14th October 2019. Much attention focused on the timing of the prorogation. The government evidently sought to avoid the impression that the sole, or indeed primary goal of the prorogation was to cut short the time for parliamentary debate of Brexit. For many commentators the weeks from now until 12 September and from 14 October to 31 October (the day the United Kingdom exits the European Union) were crucial. It tipped the balance of the prorogation from blindingly unconstitutional to constitutionally dubious, but permissible. Regardless of whether one finds this line of reasoning convincing, there is a threat that this prorogation can be extended indefinitely that has been largely overlooked: the Prorogation Act 1867.
  • S Theil, Jacob Rowbottom, Catherine O’Regan and Oliver Butler, Response to the public consultation on the Online Harms White Paper (Bonavero Report 3/2019, Bonavero Institute of Human Rights 2019)
    This constitutes the joint response of Oliver Butler, Kate Jones, Harriet Moynihan (Chatham House), Catherine O’Regan, Jacob Rowbottom and Stefan Theil to the public consultation on the Online Harms White Paper. Our overarching recommendation is that any regulatory approach to online harms should be expressly founded on human rights law. Human rights law provides both a suitable normative framework as well as crucial guidelines to assist regulatory decision-making, especially in balancing competing rights and interests in the online sphere. While the White Paper frames its approach as involving a duty of care, we believe that this terminology may be misleading: the codes of practice and the penalties for transgressions are better understood as conventional instruments of statutory regulation. We have rule of law concerns due to the broad scope of platforms and services covered. The regulator must be able to provide meaningful oversight and companies require clarity on what enforcement measures they can expect. Comparable legislation, like the Network Enforcement Law in Germany, is limited to larger companies and focused on a narrower set of platforms and services. If the broad scope outlined in the White Paper is retained, we suggest the regulator considers exempting certain companies partially or entirely from regulation (see Question 5). Legislation should consider a two-tier approach to regulation which differentiates between: (a) harms with a strong evidence basis and a reasonably clear definition (‘definite harms’) and (b) harms with a weaker evidence basis or with a less clear and context-specific definition (‘contextual harms’). While a prescriptive regulatory approach to definite harms seems appropriate, legislation may provide a more flexible oversight model for contextual harms. This would permit a degree of variation as to the standards applied by companies, increasing the choices available to users (see Question 8).
  • S Theil, 'Nadine Strossen, Hate: Why We Should Resist It with Free Speech, Not Censorship (Oxford University Press 2018)' (2019) 69 University of Toronto Law Journal 404 [Review]
    Across nine chapters, Strossen draws on some evidence from social sciences and psychology as well as comparative legal perspectives to defend the orthodox approach of the Supreme Court to free speech. At the heart of the book stands an optimistic and at times idealistic belief in the individual, especially their capability to challenge and mitigate the harms associated with hate speech. This optimism is admirable, even when it appears at odds with historic and contemporary treatment of marginalized groups. Despite its many merits and thoughtful contributions, there are also some significant points of criticism that relate chiefly to the comparative legal work and deficits in scholarly rigor. Strossen plainly has a strong view in the normative debate on free expression, but her superficial exercise in comparative human rights does the argument no favours: it reduces the examined legal systems to crude caricatures. The book thus illustrates the challenges faced by scholars engaged in comparative work. Apart from detailed and careful research, they must adopt a strong methodology that counteracts tendencies to cherry pick examples that support foregone conclusions.
  • S Theil and K O'Regan, Comments on Facebook’s draft Charter for an independent review board (Bonavero Report 2/2019, Bonavero Institute of Human Rights 2019)
    Facebook has invited comments from experts and civil society on its draft charter ‘An oversight Board for Content Decisions’. The Bonavero Report focuses in turn on three major areas of debate: (1) the mission of the independent board what issues it can and should address and practical concerns relating to the competing models; (2) the standards of review the independent board ought to apply in fulfilling its mission,and the corresponding implications for Facebook and its content moderation system;and finally (3) the institutional design of the independent board, how it will secure its independence, determine its membership, and the procedures employed.
  • S Theil, 'Unconstitutional Prorogation' (2019) UK Constitutional Law Blog
    The piece develops a twofold argument: first, that ministerial advice tendered to seek a prorogation of Parliament under these circumstances is unconstitutional and that the Monarch should disregard it as a matter of constitutional convention; and second that holding otherwise would in effect grant the Prime Minister an unqualified veto over parliamentary business, leaving the government in an unconscionable position of power over the sovereign Parliament. Such an outcome would be fundamentally at odds with British parliamentary democracy, especially principles of democracy and representative and responsible government.
  • L Lazarus, 'Insecurity and Human Rights' in Dapo Akande, Jaakko Kuosmanen and Dominic Roser (eds), Human Rights and 21st Century Challenges: Poverty, Conflict and the Environment (Oxford University Press 2019) (forthcoming)
    Explores whether we can develop a notion of 'tolerable insecurity' which can be found in the courts balancing between positive rights to security, and negative rights to state limitation.
  • L Lazarus, 'Secrecy as a Meta-Paradigmatic Challenge' in Benjamin Goold and Liora Lazarus (eds), Security and Human Rights (Hart Publishing 2019)
  • L Lazarus, 'Securitizing Sustainable Development? – the coercive sting in SDG 16' in Markus Kaltenborn et al (ed), SDGs and Human Rights (Springer 2019) (forthcoming)
  • L Lazarus and Benjamin J. Goold, 'Security and Human Rights: Finding a Language of Resilience and Inclusion' in Benjamin J. Goold and Liora Lazarus (eds), Security and Human Rights (Hart Publishing 2019)
  • S Theil, 'The German NetzDG: A Risk Worth Taking?' (2018) Verfassungsblog
    This contribution gives a succinct overview of the NetzDG and explain how some of the criticisms are overstated and partially misguided. While the NetzDG is unlikely to resolve all challenges surrounding social media and freedom of expression, and undoubtedly presents a certain risk of stifling expression online, I believe it is nonetheless a significant step in the right direction. Rather than undermine freedom of expression, it promises to contribute to more inclusive debates by giving the loud and radical voices less prominence.
  • S Theil, 'Preambles in the text and context of constitutions' in Markus Kotzur (ed), Peter Häberle on Constitutional Theory - Constitution as Culture and the Open Society of Constitutional Interpreters (Hart Publishing / Nomos 2018)
    DOI: 10.5771/9783845289519-257
    Translation from German, originally published in 1979 as 'Präambeln im Text und Kontext von Verfassungen'
  • S Theil, 'The rationale of constitutions from a cultural science viewpoint' in Markus Kotzur (ed), Peter Häberle on Constitutional Theory - Constitution as Culture and the Open Society of Constitutional Interpreters (Hart Publishing / Nomos 2018)
    DOI: 10.5771/9783845289519-229
    Translation from German, originally published in 2006 as 'Der Sinn von Verfassungen in kulturwissenschaftlicher Sicht'
    ISBN: 9781509926299
  • L Lazarus, 'Doing Violence to the Rule of Law' (2018) Douglas McK Brown Lecture, Peter Allard School of Law, University of British Columbia
    This lecture is based on ongoing work towards the completion of my book Securing Legality. It demonstrates a paradigmatic shift towards the securitization of the rule of law in international practice. It showcases a comprehensive analysis of documentation referring to the rule of law within both international agencies and domestic government departments. It also refers to interviews conducted with actors who are responsible for rule of law work within these agencies. These interviews explore and test the analysis of the primary sources produced by their agencies. At the end of the lecture I address the theoretical concerns raised by this move towards a securitized conception of the rule of law, and some scholarly responses in this field.
  • M Molavi, 'Law's Financialization: Litigation Finance and Multilayer Access to Justice' (2018) 33/3 Canadian Journal of Law and Society / Revue Canadienne Droit Et Société 425
    DOI: 10.1017/cls.2018.16
    In the aftermath of the Global Financial Crisis, states around the world have experienced sustained growth in the emerging industry of litigation finance in light of the perceived insularity of courtrooms from the instabilities and fluctuations of financial markets. In Canada, this nascent industry has been dominated by class actions given the high costs, risk exposures, and attractive rewards associated with collective redress. Such investments have been legitimated as promoting access to justice, a fundamental human right. This paper traces the historical and contemporary development of this legal dynamic of financialization by documenting the progressive liberalization of maintenance and champerty laws from the nineteenth century to the current period through a series of case studies, before exploring the legal economics of the emerging industry in Canada. In so doing, this paper critically examines the impacts of law’s financialization on multilayer access to justice.
  • C O'Regan, 'Political Parties: The Missing Link in our Constitution?' (2018) 1 South African Judicial Education Journal 61
    ISBN: 2616-7999
  • M Molavi, 'The Public Impact of Access to Justice Research' (2018) Bonavero Institute of Human Rights, Access to Justice Workshop
    Access to justice occupies a special place in the panoply of human rights. We might call it a ‘meta-right’ insofar as it is a right unto itself, but also a right that facilitates the enforcement of other rights. This is not inconsequential. As Lord Bingham famously observed: ‘An unenforceable right or claim is a thing of little value to anyone.’ In a society governed by the rule of law, the right of effective access to justice is paramount. It is scarcely necessary to quote the Magna Carta at this point, but that is precisely what the Supreme Court did last year in R (on the application of UNISON) (Appellant) v Lord Chancellor (Respondent) [2017] UKSC 51. In a passage (at para 68) worth repeating in full, the Supreme Court expanded on the pivotal importance of access to justice: At the heart of the concept of the rule of law is the idea that society is governed by law. Parliament exists primarily in order to make laws for society in this country. Democratic procedures exist primarily in order to ensure that the Parliament which makes those laws includes Members of Parliament who are chosen by the people of this country and are accountable to them. Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade. That is why the courts do not merely provide a public service like any other. The decision declared employment tribunal fees to be unlawful. Apart from removing this economic barrier for future claimants, this meant that the Ministry of Justice had to repay up to £32 million to workers who had been charged disproportionate fees to pursue claims against employers, including claims over unfair dismissal, unauthorised wage deductions, and the like. The Supreme Court observed that to the extent that “the Fees Order has the practical effect of making it unaffordable for persons to exercise rights conferred on them by Parliament, or of rendering the bringing of claims to enforce such rights a futile or irrational exercise, it must be regarded as rendering those rights nugatory.” The decision stands as a testament to the status of access to justice as a constitutional right, but also gestures towards the public impact that access to justice scholarship can attain. In the immediate aftermath of the decision, much celebratory ink was spilt on the restoration of effective access to justice for workers in the Employment Tribunal, but precious little attention was devoted to the research that contributed to refuting the logic and impact of the Fees Order. This is not only important for understanding the decision itself, but also for the ways in which it can point towards future applications of such research across the civil justice system. The exemplary work of two Oxford-based scholars—Abi Adams, Associate Professor in the Department of Economics, and Jeremias Prassl, Associate Professor in the Faculty of Law—laid the foundation for overturning the Fees Order. Through a series of published texts, notably an article entitled “Vexatious Claims: Challenging the Case for Employment Tribunal Fees” published in 2017 in the Modern Law Review, the authors refuted the legal and economic rationale of the Lord Chancellor and provided the Supreme Court with a robust empirical framework against the employment tribunal fees. Challenging the Employment Tribunal Fees with Research In a recent event on access to justice at the Bonavero Institute of Human Rights at the University of Oxford’s Faculty of Law, Adams and Prassl expanded on their law and economics approach to a group of justice stakeholders, including members of The Law Society, Public Law Project, Bingham Centre, Liberty, among others. Their approach was rooted in a standard expected value analysis common to law and economics scholarship. According to this approach, a rational claimant will only pursue a positive value claim—that is, a claim in which the expected outcome is greater than the expected costs of bringing the claim. The authors readily acknowledge that this model postulates a homo economicus that is risk-neutral and does not factor in other affective traits of human behaviour, among other aspects that would lend even further support to their argument. The conservatism of this approach rather favours the Lord Chancellor’s position from a methodological standpoint. This was a tactical decision. For Adams and Prassl, it was important to give such leeway to the Lord Chancellor’s position in order to demonstrate that the findings of adverse impacts were not the result of methodological gerrymandering on the part of creative researchers. A major facet of this research was a critique of the faulty economic logic underlying the Lord Chancellor’s position. According to the Review Report, which was cited in the Lord Chancellor’s submissions, the Ministry of Justice took the view that “the result of reducing fees would reduce the income generated by the fees.” As the Supreme Court noted: [I]t is elementary economics, and plain common sense, that the revenue derived from the supply of services is not maximised by maximising the price. In order to obtain the maximum revenue, it is necessary to identify the optimal price, which depends on the price elasticity of demand. In the present case, it is clear that the fees were not set at the optimal price: the price elasticity of demand was greatly underestimated. Adams and Prassl further point out that “it is plausible that revenue could increase if fees were reduced if tribunal use rises proportionately more than the reduction in fees.” They plainly observe that one does not maximise revenue by maximising price and ultimately that the economic logic underlying the Lord Chancellor’s position was not only questionable, but erroneous. It is one thing to refute economic logic at an abstract level, but quite another to substantiate this refutation with empirical data. There is little need to repeat the numbers, as these have been analysed at length elsewhere. Suffice to say that research found that claim volume had decreased by over 70% under the Fees Order with low-value claims practically disappearing. This reflects perfectly rational behaviour on the part of individuals with meritorious claims given that “the successful legal vindication of their rights would lead to significant financial loss, not least because the fees are ‘wholly disproportionate to the likely rewards at tribunal.’” In other words, the proportion of negative value claims had increased as a result of the Fees Order, which meant that rational claimants would no longer pursue their meritorious claims. Between 35% to 50% of claimants fell into this category. Ultimately the expected value analysis developed by Adams and Prassl confirmed that not only did the Fees Order violate the very essence of the right of access to justice, it constituted a “disproportionate measure in pursuit of the twin aims of transferring cost from taxpayers to workers and influencing claimant behaviour.” Moving Forward On the latter point, the Supreme Court noted that “[t]he question whether fees effectively prevent access to justice must be decided according to the likely impact of the fees on behaviour in the real world.” This can be viewed as a positive signal for access to justice scholars that ‘real world’ research into claimant behaviour has an important role and warrants greater attention. There is a certain dramatic quality to research contributing to the Supreme Court overturning an illegal barrier to justice, but research should ideally have a preventative dimension as well. Such scholarship can contribute to proactive evidence-based policy making. Access to justice scholarship has increasingly imported the research methods of the social sciences rather than over-relying on the normative legal reasoning that has been the mainstay of traditional legal scholarship. This shift does not necessarily privilege one particular approach over another (such as the randomised control trials of Harvard’s Access to Justice Lab or the economic modelling of Adams and Prassl). The problems of access to justice, including the dearth of baseline empirical data and broader retrenchment initiatives, demand inventiveness from scholars, and casting a wide net in empirical approaches may prove necessary to address these multidimensional problems from different angles. Finally, a basic requirement in these pursuits is the collection of baseline empirical data, such as socio-demographic and equalities data, which provides the foundation upon which research can be conducted and policies can be formed. As Natalie Byrom of The Legal Education Foundation has pointed out, this is particularly important in light of current reforms and the shift towards online processes, which provides optimal conditions for this type of data collection. Such data needs to be collected and made available to researchers as a matter of principle. Needless to say, the prospects of empirical research contributing to policy formation is dependent upon the receptivity of policy makers to such research. Policy makers have at times demonstrated such receptivity, but this has not always been the case. Adams and Prassl have proven, however, that this type of evidence-based scholarship has found a receptive audience in the highest court.
  • TAO Endicott, 'The Public Trust' in Evan J. Criddle, Evan Fox-Decent, Andrew S. Gold, Sung Hui Kim, and Paul B. Miller (eds), Fiduciary Government (Cambridge University Press 2018) (forthcoming)
    All public power is held in trust. That explains the attraction of the fiduciary theory of government, which treats the duties of trustees and other fiduciaries in private law as an explanatory analogue for the duties of public officials and agencies, including the state. But I argue that, although public agencies have many fiduciary duties, and public officials generally have fiduciary duties to the agencies in which they serve the community, public duties are not generally fiduciary. Public power is held in trust in the sense that it is to be exercised for the public good. I seek to explain the fundamental difference between that duty of service to a community, and the fiduciary’s duty to serve the interests of beneficiaries.
    ISBN: 9781108155267