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  • 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
  • Elizabeth 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)
  • S R Weatherill, 'The Protocol on Ireland/ Northern Ireland: Protecting the EU’s internal market at the expense of the UK’s' (2020) 45 European Law Review 222
    The Protocol, which is designed to keep the border between Ireland and Northern Ireland "soft" or invisible, offers a story of intellectual intrigue and dismal duplicity. Its intellectual value lies in the confirmation that the EU is, contrary to its rhetoric, prepared to insist on commitment to some but not all of its economic freedoms in particular, and its internal market acquis in general, as the price for keeping one of its external borders unguarded. The consequence, however, is that an as yet imprecisely defined border is required between Northern Ireland and Great Britain, which harms the UK’s own internal market. The duplicity which generated this damaging outcome is emblematic of the dishonesty at the heart of the entire Brexit campaign, the full implications of which are yet to emerge.
  • P P Craig, 'The Ratifications' in F Fabbrini (ed), The Withdrawal Agreement, The Law and Politics of Brexit Volume II (Oxford University Press 2020)
  • J Rowbottom, 'The Regulation of Third Party Campaigning in UK Elections' (2020) 91 The Political Quarterly 722
    This article looks at the regulation of third parties in UK election law. During the 2019 general election campaign, media reports noted an increase in non-party organisations spending money on electoral advertisements on social media. Such advertisements raised a number of ethical questions, related to spending, transparency, and the content of the messages. Despite such recent concerns, third party electoral activity in the UK is not new, and the existing legal framework regulates campaign spending. That framework has its roots in Victorian-era election law and has been periodically updated. This article will look at the challenges in designing laws to regulate third party electoral activity, as a difficult line has to be drawn to ensure the laws are effective, while at the same time not imposing too many burdens on independent political activity. Moreover, the move to digital campaigning poses some further challenges, such as monitoring compliance by third party campaigners. While there are no simple solutions to some of the issues raised by third party electoral activity, this article will note some of the measures that could at least improve the transparency of such campaigning.
  • 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 Elizabeth 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.
  • Elizabeth 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)
  • P P Craig, 'Transnational Constitution-Making: The Contribution of the Venice Commission to Law and Democracy ' in G Della Cananea and M Conticelli (eds), Rule of Law and Administrative Due Process in Europe, Trends and Challenges (Editoriale Scientifica 2020)
  • 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
  • H Eidenmüller and F Varesis, 'What is an Arbitration? Artificial Intelligence and the Vanishing Human Arbitrator' (2020) 17 NYU Journal of Law and Business 49
    Technological developments, especially digitization, artificial intelligence (AI), and blockchain technology, are currently disrupting the traditional format and conduct of arbitrations. Stakeholders in the arbitration market are exploring how new technologies and tools can be deployed to increase the efficiency and quality of the arbitration process. The COVID-19 pandemic is accelerating this trend. In this essay, we analyze the “Anatomy of an Arbitration”. We argue that, functionally, fully AI-powered arbitrations will be both technically feasible and should be permitted by the law at some point in the future. There is nothing in the concept of an arbitration that requires human control, governance, or even input. We further argue that the existing legal framework for international commercial arbitrations, the “New York Convention” (NYC) in particular, is capable of adapting to and accommodating fully AI-powered arbitrations. We anticipate significant regulatory competition between jurisdictions to promote technology-assisted or even fully AI-powered arbitrations, and we argue that this competition would be beneficial. In this competition, we expect that common law jurisdictions will enjoy an advantage: machine learning applications for legal decision-making can be developed more easily for jurisdictions in which case law plays a pivotal role.
  • 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