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  • P P Craig, 'Response to Loughlin’s Note on Miller/Cherry ' (2020) Public Law 282
  • JA Armour and H Eidenmueller, 'Self-Driving Corporations?' (2020) 10 Harvard Business Law Review 201
    What are the implications of artificial intelligence (AI) for corporate law? In this essay, we consider the trajectory of AI’s evolution, analyze the effects of its application on business practice, and investigate the impact of these developments for corporate law. Overall, we claim that the increasing use of AI in corporations implies a shift from viewing the enterprise as primarily private and facilitative, towards a more public, and regulatory, conception of the law governing corporate activity. Today’s AI is dominated by machine learning applications which assist and augment human decision-making. These raise multiple challenges for business organization, the management of which we collectively term “data governance.” The impact of today’s AI on corporate law is coming to be felt along two margins. First, we expect a reduction across many standard dimensions of internal agency and coordination costs. Second, the oversight challenges—and liability risks—at the top of the firm will rise significantly. Tomorrow’s AI may permit humans to be replaced even at the apex of corporate decision-making. This is likely to happen first in what we call “self-driving subsidiaries” performing very limited corporate functions. Replacing humans on corporate boards with machines implies a fundamental shift in focus: from controlling internal costs to the design of appropriate strategies for controlling “algorithmic failure,” that is, unlawful acts by an algorithm with potentially severe negative effects (physical or financial harm) on external third parties. We discuss corporate goal-setting, which in the medium term is likely to become the center of gravity for debate on AI and corporate law. This will only intensify as technical progress moves toward the possibility of fully self-driving corporations. We outline potential regulatory strategies for their control. The potential for regulatory competition weakens lawmakers’ ability to respond, and so even though the self-driving corporation is not yet a reality, we believe the regulatory issues deserve attention well before tomorrow’s AI becomes today’s.
  • JA Armour, 'Shareholder Rights' (2020) 36 Oxford Review of Economic Policy 314
    ‘Shareholder rights’ are the legal entitlements of shareholders vis-à-vis companies in which they invest. A large body of research has sought to investigate how shareholder rights foster accountability of controllers. The concern has been that without accountability, managers and dominant shareholders will use their power to further their own interests at the expense of outside investors. A contrasting concern is that strengthening shareholder rights may come at the expense of other parties, which may also lead to misallocation of corporate resources. A recently-emerging body of research suggests that the relationship between shareholder rights and social welfare is not monotonic, but rather inverse-U-shaped. We argue that the calibration and impact of shareholder rights depends crucially on the institutional channel(s) through which they are implemented—voting, litigation, and/or market pricing. In particular, the market pricing channel intensifies the effects of shareholder rights in ways that can be excessive. This can harm not only other constituencies but also shareholders, as it can promote short-termism and systemic externalities. These problems are less pronounced for shareholder rights implemented through the voting channel.
    ISBN: 0266-903X
  • P P Craig, 'Six Dimensions of Public Law: Pressure-Testing the UK and EU Systems' in E Fisher, J King and A Young (eds), The Foundations and Future of Public Law (Oxford University Press 2020)
  • A Adams-Prassl and J Adams-Prassl, 'Systemic Unfairness, Access to Justice and Futility: A Framework ' (2020) 40 Oxford Journal of Legal Studies 561
    DOI: 10.1093/ojls/gqaa017
    This article develops a conceptual framework for access to justice as a ground of judicial review in English law. We identify a hitherto undertheorised strand of cases which enable courts to review policy within proper constitutional bounds: the doctrine of systemic unfairness, which focuses on risks inherent in a system as a whole. In the context of access to justice, the relevant systemic risk is one of futility: a rational litigant’s inability to vindicate a meritorious claim. Proving the required facts in the context of judicial review proceedings is not an easy task. Litigants must look beyond the realisation of harm to the mechanisms which put access to justice at risk. It is only where the combined impact or cost of system-level risk is particularly severe that a policy-level challenge will succeed on access to justice grounds.
  • E Fisher, Jeff King and Alison Young (eds), The Foundations and Future of Public Law: Essays in Honour of Paul Craig (OUP 2020)
  • P Eleftheriadis, 'The German Constitutional Court’s Weiss judgment is a Failure of German Constitutionalism' (2020) 116 ELIAMEP Policy Brief
    In this paper Prof. Pavlos Eleftheriadis offers a first reaction to the judgment of the German Federal Constitutional Court in Weiss regarding the ECB’s bond buying programme. He argues that the judgment is an unprecedented revolt against the law of the European Union. • The judgment of the German Federal Constitutional Court in Weiss is an unprecedented revolt against the shared law of the European Monetary Union • The Court has departed from its prior case law and especially the well-established precedents in Lisbon (2009) and Honeywell (2010) which explained how a democratic constitution is open to European integration • The Court’s arguments seem to ignore the clear constitutional obligation created by Article 23 of the German Basic Law to comply with EU law in all cases, except when there are very serious constitutional reasons not to do so. • The Court promotes an unusual theory of the ‘constitutional identity’ of Germany as a matter of the continuing ‘popular sovereignty’ of the German people, which according to the Court can only be expressed through the present Bundestag and – it appears – cannot be delegated, shared or exercised in common with other nations. • The Court’s statist theories, which have no imitators in other European courts, place it now well outside the European mainstream. • The Court’s doctrines create a potential constitutional crisis in Germany, since they antagonise the clear democratic choice of the German people to remain a member of the Eurozone, on the basis of novel doctrines about identity, democracy and popular sovereignty
  • E Fisher, 'The Open Road?: Navigating Public Administration and the Failed Promise of Administrative Law' in Elizabeth Fisher, Jeff King, and Alison Young (eds), The Foundations and Future of Public Law: Essays in Honour of Paul Craig (OUP 2020)
  • 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 2020)
  • P P Craig, 'The Ratifications' in F Fabbrini (ed), The Withdrawal Agreement, The Law and Politics of Brexit Volume II (Oxford University Press 2020)
  • S Fredman, 'The Right to Education and Substantive Equality: An Intersectional Reading' in S. Atrey and P Dunne (eds), Intersectionality and Human Rights Law (Hart 2020)
    Education is an accelarator right, a crucial pathway out of poverty. It is also a multiplier right, enabling the full enjoyment of other rights. Yet it is still the case that women, minorities, persons with disabilities and, above all, people living in poverty, face considerable obstacles to accessing education. Most affected are those at the intersection of these. This chapter argues that only through an intersectional reading of the right to education, can we make progress towards the promise of substantive equality in the enjoyment of this right, and others. Section I examines the extent to which discrimination on the grounds of race, gender and poevery, and particularly the synergism between them, causes and perpetuates barriers to the right to education. Setion II develops the principles of substantive equality necessary to refashion the right to education in an intersectional sense. The remaining sections apply this analysis by coontrasting the jurisprudence of the US and South Africa. Brown v Board of Education focussed on race but ignored disadvantage, leaving racialized poverty in access to education untouched., Later cases focused on disadvantage, but ignored race, which meant that the crucial role of race went unaddressed. In SA, the right to education has primarily been used to address poverty and disavantage rather than race. Even less attention has been paid to gender and its intersection with race and poverty.
  • P P Craig, 'The Supreme Court, Prorogation and Constitutional Principle' (2020) Public Law 248
  • P Davies, 'THE UK STEWARDSHIP CODE 2010-2020 From Saving the Company to Saving the Planet?' (2020) European Corporate Governance Institute
    The United Kingdom introduced a Stewardship Code in 2010, followed by a slightly revised iteration in 2012 (the “first version” of the SC). It was premised upon the corporate governance advantages of engagement between institutional investors and corporate boards and was designed to redress what were perceived to be the weaknesses in the model of the monitoring board as revealed during the financial crisis. In short, the institutions were to monitor the monitor. The first version was officially branded as ineffective in a government appointed reviews at the end of 2018. It was recommended that the first version should either be abandoned or revised so as to focus more on the results of engagement. Surprisingly, the Financial Reporting Council chose not only to revise the SC in the hope of making it effective within the engagement framework, but also to expand the Code’s concept of stewardship so as to embrace environmental, social and governance matters (including climate change). This “second version” came into effect at the beginning of 2020. The purpose of this paper is to assess the chances of the second version being more successful than the first. It begins by examining the most plausible reasons for the failure of the first version, by reference to the capacity and the incentives of institutional investors to discharge the engagement function which the first version cast upon them. It concludes that the incentives and capacities were weak. Turning to predictions for the second version, it concludes that, in relation to engagement as envisaged in the first version, the second version has not effectively addressed the causes of the weakness of the first version. However, in relation to ESG factors, especially climate change, there are reasons to expect a more positive impact from the second version, mainly because governmental policy has increased the reputational incentives for institutions to exercise stewardship in this area. These reputational incentives may also be supported by changes in investors’ preferences. Overall, the second version may turn out to operate along the same lines as other changes in society rather than as an isolated reform, as with the first version. However, this optimistic prediction is conditional upon the continuance of the governmental policy and social changes which support the second version of the SC.
  • Joanna Bell and E Fisher, 'The ‘Heathrow’ Case: Polycentricity, Legislation, and the Standard of Review' (2020) 83 Modern Law Review early view [Case Note]
    The recent Court of Appeal decision in the ‘Heathrow’ case, Plan B Earth v Secretary of State for Transport is an illustration of the challenges of reviewing polycentric and expert decision‐making. The issues raised in the case concerning the Planning Act 2008 are an illustration of a court's expository role in such contexts. The Court tackled directly a series of interpretive questions concerning the Planning Act 2008's obligations regarding the consideration of climate change. The Habitats and Strategic Environmental Assessment (SEA) Directive issues raised in the appeal, in contrast, were presented with the question of the intensity of review foregrounded in legal argument. The Court therefore sought to articulate the ‘standard of review’ and to apply it to the government's decisions. This way of framing the issue unfortunately sidelined the courts’ expository role in relation to intepreting the Habitats and SEA Directives, leaving key provisions under‐analysed.
    ISBN: 1468-2230
  • S Fredman, D. Du Toit, M. Graham and K. Howson, 'Thinking out of the Box: Fair Work for Platform Workers' (2020) 31 King's Law Journal 236
    The burgeoning gig economy largely operates outside of existing labour standards, mainly because in most countries workers are classified as self-employed rather than as employees. Until now, much legal effort has been focused on bringing platform workers within the scope of labour law by proving that they fit the definition of employee or worker, which functions as the gateway to employment rights. However, this approach is limited, not least because platforms are adept at reconfiguring their conditions of work to avoid the legal definition of employee,. By contrast, not enough attention has been paid to how labour law standards, fashioned for the ‘employee’ paradigm, should be reshaped to meet the needs of platform workers regardless of their employment status. It is these challenges that the Fairwork project in South Africa aims to address.. Funded by the ESRC Global Challenges Research Fund, the project, it aims to create pressure on platforms to improve working conditions through a public ranking system which scores selected platforms according to their record under five broad principles: fair pay, fair conditions, fair contract, fair management and fair representation.. Concurrently, we use the empirical work to develop standards capable of being given legally binding force. Given that the limited impact of legal regulation has prompted action to be taken outside of labour law in this area, what, if any, is the ongoing role of labour law? The paper argues that there is an important two-way interaction between rating standards and legal regulation. Part II examines pathways to change, setting out the project and its overall rationales. Part III examines the substance of the rating principles and their interaction with legal employment rights. Part IV touches on how rating principles might be translated into legally binding standards capable of responding to the needs of platform workers. It concludes that they should be seen as crucially complementary.
  • E Fisher, 'Through 'Thick' and 'Thin': Comparison in Administrative Law and Regulatory Studies Scholarship' in Peter Cane and others (eds), The Oxford Handbook of Comparative Administrative Law (OUP 2020)
    ISBN: 9780198799986
  • D. Du Toit, S Fredman and M. Graham, 'Towards Legal Regulation of Platform Work: Theory and Practice ' (2020) Industrial Law Journal (South Africa)
  • JA Armour, R Parnham and M Sako, 'Unlocking the Potential of AI for English Law' (2020) International Journal of the Legal Profession
    This paper discusses how digital technologies including artificial intelligence (AI) reshape the work of lawyers and the organisations that they work for. We overview how AI is being used in legal services, and identify three distinct impacts: AI substitutes automatable legal tasks; AI enhances productivity of lawyers giving advice on the basis of AI-generated outputs; and legal expertise itself augments the deployment of AI when lawyers work as part of a multi-disciplinary team (MDT) encompassing a range of relevant professional expertise. Our survey of English solicitors shows that AI deployment is associated with MDTs, and that MDTs are less prevalent in law firms than in corporations. This latter finding is due to challenges that law firms face as mono-professional partnerships. We find evidence from our interviews that their challenges lie not so much in capital constraints, relaxed via alternative business structures in the UK, but in traditional law firms’ inability to recruit and retain talent other than those in the legal profession. Inadequate adaption is occurring in law firms shifting their structure from a funnel shape to a rocket shape with junior lawyers in partnership tournament working alongside a growing number of non-lawyers whose career paths offer no prospect of partnership.
    ISBN: 1469-9257
  • TAO Endicott, 'What use has approved' (2020) 33 Ratio 220
    The meaning of a word is given by a customary rule for its use. I defend that claim and explain its implications by a comparison with customary rules in law. I address two problems about customary rules: first, how can the mere facts of social practice yield a norm? Secondly, how can we explain disagreement about the requirements of a custom, if those requirements are determined by the shared practice of the participants in a community? These problems can be resolved in a way that illuminates customary rules, and helps to explain the relation between the meaning of a word and the customary rule for its use. The meaning of a word is the usefulness that it has because of the customary rule for its use.
    ISBN: 1467-9329
  • TAO Endicott, 'Why Proportionality is not a General Ground of Judicial Review' (2020) 1 Keele Law Review 1
    Proportionality is a relation between two things held, metaphorically, in either side of a balance. Proportionality is a ground of judicial review of executive decisions when and only when the law requires judges to hold the scales, and to weigh one set of interests against another. That can be a just and convenient way for the law to give special protection for interests that call for that protection (as the law of the European Convention on Human Rights and European Union law do, and the common law does in some circumstances). Proportionality should not be a ground of judicial review (1) if a claimant can assert no interest that ought to be protected by proportionality reasoning, or (2) if the weighing ought not to be done by a court. As a result, proportionality can never be a general ground of judicial review of administrative action. The grounds of judicial review are various and depend on the nature of an administrative decision. In fact, there is no general common law ground of judicial review of the substance of administrative decisions. Not even Wednesbury unreasonableness. I will explain this view by pointing out the good sense in the famous, albeit flawed, 1948 decision of the Court of Appeal in Associated Provincial Picture Houses Ltd v Wednesbury Corporation.
    ISBN: 2732-5679
  • S Enchelmaier, '“The Development of the Free Movement Principles over Time”' in S Garben & I Govaere (ed), Internal Market 2.0 (Hart 2020)
    ISBN: ISBN 9781509939053
  • L Enriques and Alessandro Romano, 'Institutional Investor Voting Behavior: A Network Theory Perspective' (2019) University of Illinois Law Review 223
    This Article shows how network theory can improve our understanding of institutional investors’ voting behavior and, more generally, their role in corporate governance. The standard idea is that institutional investors compete against each other on relative performance and hence might not cast informed votes due to rational apathy and rational reticence. In other words, institutional investors have incentives to free ride instead of “cooperating” and casting informed votes. We show that connections of various nature among institutional investors, whether from formal networks, geographical proximity, or common ownership, and among institutional investors and other agents, such as proxy advisors, contribute to shaping institutional investors’ incentives to vote “actively.” They also create intricate competition dynamics: competition takes place not only among institutional investors (and their asset managers), but also at the level of their employees and among “cliques” of institutional investors. Employees, who strive for better jobs, are motivated to obtain more information on portfolio companies than may be strictly justified from their employer institution’s perspective, and to circulate it within their network. Cliques of institutional investors compete against each other. Because there are good reasons to believe that cliques of cooperators outperform cliques of noncooperators, the network-level competition might increase the incentives of institutional investors to collect information. These dynamics can enhance institutional investors’ engagement in portfolio companies and also shed light on some current policy issues such as the antitrust effects of common ownership and mandatory disclosures of institutional investors’ voting.