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  • 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)
    DOI: doi.org/10.3233/FAIA200857
    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
  • J Rowbottom, 'Freedom of Expression and the Right to Vote: Political Rights and the Common Law Constitution' in Mark Elliott and Kirsty Hughes (eds), Common Law Constitutional Rights (Hart 2020)
  • 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.
  • E von Schagen and S R Weatherill, 'Impact Assessments in EU Contract Law' in E von Schagen and S R Weatherill (eds), Better Regulation in EU Contract Law: The Fitness Check and the New Deal for Consumers (Oxford: Hart Publishing 2020)
    DOI: 10.5040/9781509928385.ch-001
    Impact assessments form an essential part of the European’s Commission’s Better Regulation Agenda. Better regulation has been a central preoccupation of the Commission of late: it has revised the Impact Assessment Guidelines, reformed the Impact Assessment Board, negotiated a new Interinstitutional Agreement on Better Lawmaking, and established the REFIT platform. Thus, the Better Regulation Agenda has continued to function as a major initiative to improve the EU’s impact as a regulator. Within this agenda, the European Commission has attached special importance to ex ante impact assessments. With the newly revised Better Regulation Guidelines, the European Commission has created standards for consultations and ex post evaluations, while also extending the use of combined ex-post evaluations of multiple measures in the form of ‘fitness checks’. Evaluations and fitness checks provide an ‘evidence-based’ judgment of the effectiveness, efficiency, relevance, and coherence of EU measures, as well as their EU added value. The combination of multiple measures should render fitness checks especially suited to ‘identify excessive regulatory burdens, overlaps, gaps, and inconsistencies’ in EU consumer law. These ambitions echo the criticisms of European contract law presented in previous Green and White Papers and Communications released by the Commission since it first insisted on the need to review and reform the state of EU contract law in 2001, but typically, and in a manner which is different from usual national private law initiatives, the evidence supporting fitness checks is procured from Eurobarometer surveys, commissioned research in the form of expert advice, reports, and interviews, as well as consultations. In turn, this evidence should strengthen impact assessments, as drafters of these frequently have little insight in national practices.
    ISBN: 978-1-50992-835-4
  • 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)
  • G Webber and R Ekins, 'Legislated Rights and contemporary constitutional government: a reply' (2020) 11 Jurisprudence 632
    This reply, written for a symposium in (2020) 10 Jurisprudence on Legislated Rights: Securing Human Rights Through Legislation (Cambridge University Press 2018, pb 2019), engages with the careful, constructive, and critical challenges of Timothy Endicott, Dimitris Tsarapatsanis, and Lael Weis. Organised around the theme of the relevance of Legislated Rights for modern constitutional government, the reply explores four themes: (1) institutional analysis and the nature of rights; (2) the role of the executive in the legislature and beyond it; (3) the relationship between legislation, adjudication, and interpretation; and (4) the continuing relevance of Dworkin’s policy/principle dual-forum thesis, including among several proponents of weak-form, dialogic, or Commonwealth conceptions of judicial review.
  • 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
    DOI: https://doi.org/10.1515/ecfr-2020-0014
    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
  • J Rowbottom, 'Political Finance and the Constitution of Social Democracy' in Alan Bogg, Jacob Rowbottom, Alison L Young (ed), The Constitution of Social Democracy (Hart 2020)
  • J Rowbottom, 'Positive Protection for Speech and Substantive Political Equality' in Andrew T Kenyon, Andrew Scott (ed), Positive Free Speech: Rationales, Methods and Implications (Hart 2020)
  • 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
  • P P Craig, 'Response to Loughlin’s Note on Miller/Cherry ' (2020) Public Law 282
  • J Armour and H Eidenmüller, 'Self-Driving Corporations?' (2020) 10 Harvard Business Law Review 87
    DOI: http://dx.doi.org/10.2139/ssrn.3442447
    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 by machines implies a fundamental shift in focus: from controlling internal costs to the design of appropriate strategies for controlling ‘algorithmic failure’, i.e. 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 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
    DOI: https://doi.org/10.1093/oxrep/graa005
    ‘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.

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