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  • P P Craig, 'Reasonableness, Proportionality and General Grounds of Judicial Review: A Response' (2021) Keele Law Review 1
  • N. W. Barber, 'Sovereignty, Parties, and Principles: A Partial Reply' (2021) 23 Jerusalem Review of Legal Studies (forthcoming)
  • P P Craig and Grainne de Burca (eds), The Evolution of EU Law (3rd edn Oxford University Press 2021)
  • P Eleftheriadis, 'The Government's Radical Theory of the Constitution' (2021) Oxford Human Rights Hub Blog
    In its response to the Independent Review of Administrative Law, the Government has set out a theory of the constitution that animates its case for reform and informs its position that the courts are illegitimately interfering with the powers of the Executive. It is not a conservative view. It is strikingly radical. The government’s position is, in effect, that parliamentary sovereignty was largely fixed by the Victorian constitution as described by Dicey. Parliament is unconditionally dominant and defines the rule of law as well as any other constitutional principle.
  • A Briggs, 'The long arm of the law ?' [2021] Lloyd's Maritime and Commercial Law Quarterly 223 [Case Note]
    Note on KBR Inc v Serious Fraud Office and the territorial reach of orders made by the Director of the SFO.
    ISBN: 0306 2945
  • P P Craig, 'The Principle of Legality' in P Cane, H Hofmann, E Ip and P Lindseth (eds), The Oxford Handbook of Comparative Administrative Law (Oxford University Press 2021)
  • P P Craig, 'The Rule of Law: National, International and Regional Dimensions' in B Faedda (ed), The Rule of Law: Cases, Strategies and Interpretations (RES, The Italian Academy Columbia University 2021)
  • N. W. Barber, 'The Significance of the Common Understanding in Legal Theory (reprint) ' in D. Kyritsis and S. Lakin (eds), The Methodology of Constitutional Theory (Hart 2021) (forthcoming)
  • R Ekins, 'The State and Its People' (2021) 66 The American Journal of Jurisprudence 49
    This article considers the relationship between the state and its people, reflecting on Nick Barber’s principles of constitutionalism. The joint intention of the people is central to the social reality of the good state, which is an institutionally ordered people. Other forms of political order, including empire, are possible, but there is good reason for a people to form a state and to exercise political agency. While under some conditions non-democratic rule is legitimate, there is good reason for authority to be shared widely and for rulers to foster close connections with the ruled, which makes self-government possible. Barber’s account of subsidiarity risks neglecting social solidarity in general, and nationality in particular, which would undermine the joint intention of the people. The sovereign state is the means by which a people participates in the international realm, but sovereignty may be misused to alienate a people from the state.
  • S R Weatherill, 'The United Kingdom’s Internal Market' (2021) Europarättslig Tidskrift (forthcoming)
    ISBN: 2002-3561
  • P P Craig, 'United Kingdom' in S Griller and E Lenstch (eds), EMU Integration and Member States’ Constitutions (Hart 2021)
  • H Eidenmüller, 'Vermitteln auf Leben und Tod' (2021) Frankfurter Allgemeine Zeitung
  • A Briggs, 'Which Law Applies ? A role for private international law' in C L Lim (ed), The Cambridge Companion to International Arbitration (Cambridge University Press 2021)
    An analysis of the proper role of private international law (rules and principles) in the context of international arbitration.
    ISBN: 9781108480598
  • M Bobek and J Adams-Prassl (eds), The EU Charter of Fundamental Rights in the Member States (Bloomsbury 2020)
    Ten years after the Charter of Fundamental Rights of the European Union became part of binding primary law, and twenty years since its adoption, this volume assess the application of the EU Charter in the Member States. How often, and in particular by which actors, is the EU Charter invoked at the national level? In what type of situations is it used? Has the approach of national courts in general, and of constitutional courts in particular, to EU law to EU fundamental rights law changed following the entry into force of the Charter? What sort of interplay does the Charter generate with the national bill of rights and the European Convention? Is the life with the Charter on the national level a harmonious 'praktische Konkordanz' or rather a messy 'ménage à trois'? These and other questions are discussed in the four parts that form the book. Part I is dedicated to the normative foundations. Part II sets out Member States' Perspectives, providing a structured, in-depth account of the Charter's operation in 16 different Member States. Part III provides a detailed evaluation of selected rights contained within the Charter. Part IV synthesises the materials presented up to that point to develop a series of broader perspectives, looking to discover underlying lessons about the relationship between EU fundamental rights law and national legal systems.
    ISBN: 9781509940912
  • JA Armour, J Gordon and G Min, 'Taking Compliance Seriously' (2020) 36 Yale Journal on Regulation 1
    How can we ensure corporations play by the “rules of the game”—that is, laws encouraging firms to avoid socially harmful conduct? Corporate compliance programs play a central role in society’s current response. Prosecutors give firms incentives—through discounts to penalties—to implement compliance programs that guide and monitor employees’ behavior. However, focusing on the incentives of firms overlooks the perspective of managers, who decide how much firms invest in compliance. We show that stock-based pay, ubiquitous for corporate executives, creates systematic incentives to short-change compliance. Compliance is a long-term investment for firms, whereas managers’ time horizon is truncated to the date they expect to liquidate stock. Moreover, investors find it hard to value compliance programs because firms routinely disclose little or nothing about their compliance activities. We show that stock-compensated managers prefer not to disclose compliance because such disclosure can reveal private information about a firm’s propensity to misconduct. As a result, both managers and markets are likely myopic about compliance. How can this problem be resolved for the benefit of society and shareholders? Boards of directors are supposed to act as monitors to control managerial agency costs. We show that the increasing use of stock-based compensation for directors, justified as a means of encouraging more vigorous oversight of business decisions, also has a corrosive effect on boards’ monitoring incentives for compliance. Directors in theory face liability for compliance oversight failures, but only if so egregious as to amount to bad faith. We argue that this standard of liability, established in an era before ubiquitous stock-based compensation for both managers and directors, has now become too lax. We propose more assertive directors’ liability for compliance failures, limited in quantum to a proportionate clawback of stock-based pay. This would add power to the alignment of directors’ interests with those of shareholders—directors would stand to lose more than just a decrease in the value of their stock in the event of a compliance failure—but limiting liability in this way would avoid pushing boards to overinvest in compliance. We outline ways in which this proposal could be implemented either by shareholder proposals or judicial innovation.
  • Elizabeth Fisher, 'Executive Environmental Law' (2020) 83 Modern Law Review 163
    DOI: 10.1111/1468-2230.12456
    The Draft Environment (Principles and Governance) Bill published by DEFRA in late 2018 is part of a process of reimagining environmental law in light of Brexit. The Draft Bill creates frameworks for policy statements on environmental principles and environmental implementation plans, as well as creating a new enforcement body – the Office for Environmental Protection. This Draft Bill is, at the very least, an ineffectual response to the challenges of environmental law post‐Brexit. More alarmingly, it raises the possibility of a legal future in which the executive dominates how the norms, ambitions, and accountabilities of environmental law are defined. These are matters of concern for environmental and public lawyers alike.
    ISBN: 1468-2230
  • R Williams, 'The Theoretical Basis of Accomplice LIability' in Beatrice Krebs (ed), Accessorial Liability after Jogee (Hart 2020)
    Argues that accessory liability has essentially pragmatic foundations, meaning that when it is necessary to decide some detailed aspect of the doctrine there is no sufficient normative foundation that can be used to guide the answer. This explains the difficulties and repeated appeals involving the doctrine. Two potential underlying normative justifications are suggested, approval or a partially causal approach, but argues that neither can be used to explain all aspects of the current law and that were either to be adopted consistently this would involve changes in the substantive law and the operation of the doctrine.
    ISBN: 9781509918904
  • L Enriques and W-G Ringe, 'Bank-fintech partnerships, outsourcing arrangements and the case for a mentorship regime' (2020) 15 Capital Markets Law Journal 374
    Fintech firms, once seen as ‘disruptors’ of the traditional banking world, are now increasingly seen as attractive partners for established financial institutions. Such partnership agreements come in different forms and contexts, but most share the goals of outsourcing key banking functions and facilitating market entry for new market players while overcoming relatively tough regulatory hurdles. Yet such arrangements, while generally to be welcomed, pose a number of regulatory problems, in particular concerning the effective supervision of fintechs that operate outside of the direct purview of regulatory authorities. Questions of enforcement and effective supervision emerge, which may ultimately result in problems regarding market stability and systemic risk. Regulatory sandboxes represent one attempt to address these problems but may fail to do so and are often ineffective or unavailable. Other similar solutions, such as fintech charters and umbrella firms, may help but, similarly, provide an imperfect solution. Against this backdrop, we make the case for a ‘mentorship regime’, which provides for a reliable regulatory framework for partnership agreements between fintech firms and established banks. This would allow for a de facto ‘private sandbox’ where experienced firms could mentor new startups and help them to cope with a complex regulatory process. At the same time, a state-backed mentorship plan would clear up the allocation of responsibilities, supervision competences, and liability questions and thus overcome problems of arbitrage and abuse. Ultimately, a mentorship regime may show the way to a new and more reliable future system of banking, making the well-stablished contractual practice of outsourcing banking services more reliable.
    ISBN: 1750-7227
  • P Eleftheriadis, A Union of Peoples: Europe as a Community of Principle (Oxford University Press 2020)
    Many political and legal philosophers compare the EU to a federal union and believe its basic laws should be subject to the standards of constitutional law, and thus find it lacking or incomplete. This book proposes a rival theory: that the substance of EU law is not constitutional, but international, and provides a close examination of the treaties and the precedents of the European courts to explore this concept further. Just like international law, EU law applies primarily to the relations between member states, who have democratically chosen to adapt their constitutional arrangements in order to share legislative and executive powers with their partners. The legal architecture of the European Union is thus best understood under a theory of dualism and not pluralism. According to this 'internationalist' view, EU law is part of the law of nations and its distinction from domestic law is a matter of substance, not form. This arrangement is supported by a cosmopolitan theory of international justice, which we may call progressive internationalism. The EU is a union of democratic peoples, freely organizing their interdependence on the basis of principles of equality and reciprocity. Its central principles are not the principles of a constitution, but cosmopolitan principles of accountability, liberty, and fairness.
    ISBN: 9780198854173