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  • S Fredman, ' Tolerating the Intolerant: Religious Freedom, Complicity, and the Right to Equality ' (2020) Oxford Journal of Religion and the Law 1
    Tolerance has always been a central principle underpinning freedom of religion. But what if a person’s deeply held beliefs include intolerance of others’ rights or freedoms? Does tolerance of religious difference include tolerating intolerant behaviours? The paradox of tolerance has been thrown into relief by recent case-law on ‘complicity’ claims by religious adherents. Complicity claims assert that freedom of religion includes the right to exemptions from laws which the claimant regards as making her complicit in the sinful behaviour of others. Accommodating such claims can be stigmatic and demeaning of third parties. This paper argues that, in the context of complicity claims, neither tolerance nor neutrality can determine what weight to be given to the conflicting interests. Rather, they operate to disguise background value judgements. Instead, a proportionality analysis should be applied which is based on a hierarchy of values which expressly locates itself in substantive equality. Using a multi-dimensional conception of the right to substantive equality, the paper examines recent case-law on complicity claims in the US, UK, Canada and under the ECHR. Part II sets up the analytic framework. Parts III and IV apply the analysis to complicity claims in relation to LGBTQI and reproductive rights respectively.
  • TAO Endicott, 'Authentic Interpretation' (2020) 33 Ratio Juris 6–23
    I approach the identification of the principles of legal interpretation through a discussion of an important but largely forgotten strand in our legal heritage: the idea (and at some points in English law, the rule) that the interpretation of legislation is to be done by the law maker. The idea that authentic interpretation is interpretation by the law maker united the Roman Emperors Constantine and Justinian with Bracton, Aquinas, King James I of England, Hobbes, and Bentham. Already in the early 17th century, a new modern approach was emerging in England. The modern approach separates the interpretive power from the legislative power, and allocates the interpretive power to an independent court. I will argue that there are some cogent, general considerations in favour of the modern approach. But it is worth identifying the elements of good sense that made it seem that the interpretive power ought to be reserved for the law maker. And it is worth identifying the drawbacks in the modern approach; they are relevant to the complex question of how judges ought to interpret.
    ISBN: 1467-9337
  • JA Armour, B Garrett, J Gordon and G Min, 'Board Compliance' (2020) 104 Minnesota Law Review 101
    What role do corporate boards play in compliance? Compliance programs are internal enforcement programs, whereby firms train, monitor and discipline employees with respect to applicable laws and regulation. Corporate enforcement and compliance failures could not be more high-profile, and have placed boards in the position of responding to systemic problems. Both case law on boards’ fiduciary duties and guidance from prosecutors suggest that the board should have a continuing role in overseeing compliance activity. Yet very little is actually known about the role of boards in compliance. This paper offers the first empirical account of public companies’ engagement with compliance at the board level, drawing on director-level data from BoardEx and data on federal organizational prosecutions from the Duke University and University of Virginia Corporate Prosecution Registry. We find that, despite a standard account that compliance has boomed, few boards actually adopt compliance committees. Less than five per cent of U.S. public companies have done so, although the proportion has grown steadily over time. We use our data to explore why boards establish compliance committees. Our results suggest that there is room for more constructive engagement with compliance by many boards. We conclude by recommending ways in which board compliance might be facilitated or encouraged: reconsidering norms about board size and independence, enhancing accountability of directors to regulators, and tightening state law fiduciary duties regarding oversight.
  • P Eleftheriadis, 'Book Review: EU Legal Acts ' (2020) Common Market Law Review [Review]
  • P P Craig, 'Brexit a Drama: The Endgame—Part I' (2020) 45 European Law Review 163
  • Maurice Stucke and AE Ezrachi, Competition Overdose - How Free Market Mythology Transformed Us from Citizen Kings to Market Servants (HarperCollins 2020)
    Using dozens of vivid examples to show how society overprescribed competition as a solution and when unbridled rivalry hurts consumers, kills entrepreneurship, and increases economic inequality, two free-market thinkers diagnose the sickness caused by competition overdose and provide remedies that will promote sustainable growth and progress for everyone, not just wealthy shareholders and those at the top. Whatever illness our society suffers, competition is the remedy. Do we want better schools for our children? Cheaper prices for everything? More choices in the marketplace? The answer is always: Increase competition. Yet, many of us are unhappy with the results. We think we’re paying less, but we’re getting much less. Our food has undeclared additives (or worse), our drinking water contains toxic chemicals, our hotel bills reveal surprise additions, our kids’ schools are failing, our activities are tracked so that advertisers can target us with relentless promotions. All will be cured, we are told, by increasing the competitive pressure and defanging the bloated regulatory state. In a captivating exposé, Maurice E. Stucke and Ariel Ezrachi show how we are falling prey to greed, chicanery, and cronyism. Refuting the almost religious belief in rivalry as the vehicle for prosperity, the authors identify the powerful corporations, lobbyists, and lawmakers responsible for pushing this toxic competition—and argue instead for a healthier, even nobler, form of competition. Competition Overdose diagnoses the disease—and provides a cure for it. The book was listed as one of Inc. Magazine top business books you need to read in 2020 and one of Publishers Weekly Top 10 Business & Economics books for Spring 2020.
  • P Eleftheriadis, 'Cosmopolitan Legitimacy' in Jorge Fabra (ed), Jurisprudence in a Globalized World (Edward Elgar 2020)
  • P P Craig and M Markakis, 'EMU Reform' in F Amtenbrink and C Hermann (eds), EU Law of Economic and Monetary Union (Oxford University Press 2020)
  • P P Craig and G de Burca , EU Law, Text, Cases and Materials (7th edn Oxford University Press 2020)
  • P P Craig and G de Burca , EU Law, Text, Cases and Materials, UK Edition (7th edn Oxford University Press 2020)
  • A Romano, L Enriques and JR Macey, 'Extended Shareholder Liability for Systemically Important Financial Institutions' (2020) 69 American University Law Review 967
    Regulators generally have tried to address the problems posed by the excessive risk-taking of Systemically Important Financial Institutions (SIFIs) by placing restrictions on the activities in which SIFIs engage. However, the complexity of these institutions makes such attempts necessarily imperfect. This Article proposes to address the problem at its very source, which is the incentives that SIFI owners have to push for excessive risk-taking by managers. Building on the traditional rule of “double liability,” we propose to modify the current (general) rule limiting the liability of SIFI shareholders to the amount of their initial investments in such companies. We propose replacing the extant limited liability regime with a new system that imposes additional liability over and above what SIFI shareholders already have invested in a preset amount that varies with a SIFI’s centrality in the financial network. Our liability regime has a number of advantages. First, by increasing shareholder exposure to downside risk, it discourages excessive risk-taking. At the same time, by placing a clearly defined ceiling on shareholders’ total liability exposure, it will not obliterate shareholders’ incentives to invest in the first place. Second, the liability to which shareholders are exposed is carefully tailored to the level of systemic risk that their institution creates. Thus, our rule induces shareholders to account for the negative externality SIFIs can impose without unduly stifling such financial institutions’ role within the financial system and in the wider economy. Third, as the amount of liability is clearly defined ex ante using the rigorous tools of network theory, our rule minimizes the influence of interest groups and the impact of idiosyncratic government decisions. Last, as markets know in advance the amount of liability to which shareholders are exposed, our rule favors the creation of a vibrant insurance and derivative market so that the risk of SIFIs defaults can be allocated to those who can better bear it.
  • A Petrova, JA Armour and T Lukasiewicz, 'Extracting Outcomes from Appellate Decisions in US State Courts' in S Villata, J Harašta, P Křemen (ed), Proceedings of JURIX 2020: 33rd International Conference on Legal Knowledge and Information Systems (IOS Press 2020)
    Predicting the outcome of a legal process has recently gained considerable research attention. Numerous attempts have been made to predict the exact outcome, judgment, charge, and fines of a case given the textual description of its facts and metadata. However, most of the effort has been focused on Chinese and European law, for which there exist annotated datasets. In this paper, we introduce CASELAW4 — a new dataset of 350k common law judicial decisions from the U.S. Caselaw Access Project, of which 250k have been automatically annotated with binary outcome labels of AFFIRM or REVERSE by our hybrid learning system. To our knowledge, it is the first attempt to perform outcome extraction (a) on such a large volume of English-language judicial opinions, (b) on the Caselaw Access Project data, and (c) on US State Courts of Appeal cases, and it paves the way to large-scale outcome prediction and advanced legal analytics using U.S. Case Law. We set up baseline results for the outcome extraction task on the new dataset, achieving an F-measure of 82.32%.
    ISBN: 978-1-64368-151-1
  • TAO Endicott, 'How Judges Make Law' in Elizabeth Fisher, Jeff King, and Alison Young (eds), The Foundations and Future of Public Law (Oxford University Press 2020)
    Unlike statute law, case law is not ordinarily made through actions designed to make law. The central purpose of a court is resolution; the court achieves it by giving judgment in a particular case. For judges to make law well, it is enough if they do well at their primary task of giving a ruling in the case. They make law incidentally because of the effect the law gives to their rulings. That feature of case law, along with its open-endedness and revisability, seems to support the view that it is not law at all, or that if it is law, law must be something that springs from the imagination of the judge. This chapter explains why these aspects of judicial law making accord with the view that case law, like statute law, is a set of rules made valid by their sources in past decisions.
    ISBN: 9780198845249
  • TAO Endicott, 'Human rights and the executive' (2020) 11 Jurisprudence 597
    DOI: 10.1080/20403313.2020.1833587
    The executive is the agency of government with the most effective capacity to violate human rights, and its role in the law of human rights seems to focus on its subjection to the constitution, to legislation, and to the order of a court. For a symposium on Webber, Yowell, Ekins, Köpcke, Miller and Urbina, Legislated Rights (CUP 2018), I argue, instead, that respect for human rights –and good human rights law as well– depends on the active role of the executive branch. For a state to respect human rights, perfect executive compliance with the constitution, with legislation, and with judicial orders is not enough; it takes the active initiative of the diverse variety of executive agencies to take the lead in specifying the requirements of human rights and giving them effect. This is true partly because of the crucial role of the executive in legislation, and partly because, if the executive has a general contempt for human rights, the courts will be incapable of remedying the resulting abuses. The fundamental importance of the executive lies at the point of action in support of vulnerable persons, where the requirements of respect for human dignity get their ultimate specification from the act of a nurse, or a police officer, or another executive agent.
  • P Davies, Introduction to Company Law (3rd edn OUP 2020)
    The book analyses the mechanisms through which the law provides an organisational structure for the conduct of business. Given that structure, the book then discusses how the law seeks to reduce the costs of using it, whether these are costs for managers, shareholders as a class, non-controlling shareholders, creditors or employees, identifying the trade-offs involved. This discussion takes in both the Companies Act 2006 and various types of “soft law”, notably the Corporate Governance and Stewardship Codes. This third edition contains two new chapters: one on liability and enforcement and the other on the social function of corporate law. Both are issues that have come to prominence in the aftermath of the financial crisis of 2007 to 2009.
    ISBN: 978-0-19-885492-0
  • P P Craig, 'Judicial Review and Judicial Deference' in M Scholten and A Brenninkmeijer (eds), Controlling EU Agencies, The Rule of Law in a Multi-Jurisdictional Order (Edward Elgar 2020)
  • TAO Endicott, 'Making Constitutional Principles into Law' (2020) 136 Law Quarterly Review 175 [Case Note]
    Case note on R. (on the application of Miller) v Prime Minister; Cherry v Lord Advocate [2019] UKSC 41; [2019] 3 W.L.R. 589.
    ISBN: 0023-933X
  • L Enriques, 'Pandemic-Resistant Corporate Law: How to Help Companies Cope with Existential Threats and Extreme Uncertainty During the Covid-19 Crisis' (2020) European Company and Financial Law Review 257
    This essay argues that, to address the Covid-19 crisis, in addition to creating a special temporary insolvency regime, relaxing provisions for companies in the vicinity of insolvency, and enabling companies to hold virtual meetings, policymakers should tweak company law to facilitate equity and debt injections and address the consequences of the extreme uncertainty firms are facing. After some general reflections upon the type of rules that are needed in these exceptional times, examples of temporary corporate law interventions for the emergency are provided. Specifically, rules to facilitate injections of equity capital and shareholder loans are suggested, together with relaxations of directors’ liability rules and measures to protect firms against hostile takeovers. All of these measures should apply merely by default and only for so long as the emergency lasts. The essay concludes with some thoughts about how to make normal-times corporate law ready for similar emergencies in the future. The goal is both to reduce the risk that the temporary extreme measures enacted for this crisis are made permanent under the pretence that another crisis may hit again and to have quick adaptation mechanisms already in place to respond to such a crisis.
    ISBN: 1613-2556
  • A Briggs, 'Private International Law and the Privy Council' in Charles Mitchell and Stephen Watterson (eds), The World of Maritime and Commercial Law: Essays in Honour of Francis Rose (Hart 2020)
    Analysis of the contribution (positive and negative) to the private international law of those jurisdictions whose local decisions are liable to be appealed to the Privy Council, and the drawing of conclusions which appear to follow from the evidence.
    ISBN: 978-1-5099-3242-9
  • P P Craig, 'Proportionality and Constitutional Review' (2020) 3 University of Oxford Human Rights Hub Journal 87