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  • S Enchelmaier, 'Stranded: 'European' Ltds Post-Brexit' (2018) 33 Journal of International Banking and Financial Law 513
  • AE Ezrachi and Maurice Stucke, 'Sustainable and Unchallenged Algorithmic Tacit Collusion' (2018) SSRN
    Algorithmic collusion is a hot topic within antitrust circles in Europe, US and beyond. But some economists downplay algorithmic collusion as unlikely, if not impossible. This paper responds to these criticisms by pointing to new emerging evidence and the gap between law and this particular economic theory. We explain why algorithmic tacit collusion isn’t only possible, but warrants the increasing concerns of many enforcers.
  • J Adams-Prassl, 'The Gig Economy before the Court of Justice: from digital service provision to work intermediation' in O Deinert, J Heuschmid, M Kittner, M Schmidt (ed), Demokratisierung der Wirtschaft durch Arbeitsrecht: Festschrift Thomas Klebe (Bund Verlag 2018)
  • J Armour and L Enriques, 'The Promise and Perils of Crowdfunding: Between Corporate Finance and Consumer Contracts' (2018) The Modern Law Review 51
    DOI: 10.1111/1468-2230.12316
    ‘Crowdfunding’ is a burgeoning phenomenon. Its still-evolving status is reflected in diversity of contracting practices: for example, ‘equity’ crowdfunders invest in shares, whereas ‘reward’ crowdfunders get advance units of product. These practices occupy a hinterland between existing regimes of securities law and consumer contract law. Consumer protection law in the UK (but not the US) imposes mandatory terms that impede risk-sharing in reward crowdfunding, whereas US (but not UK) securities law mandates expensive disclosures that hinder equity crowdfunding. This article suggests that while crowdfunding poses real risks for funders, the classical regulatory techniques of securities and consumer law provide an ineffective response. Yet, a review of rapidly-developing market mechanisms suggests they may provide meaningful protection for funders. An initially permissive regulatory approach, open to learning from market developments yet with a credible threat of intervention should markets fail to protect consumers, is justified.
    ISBN: 1468-2230
  • TAO Endicott, 'The Public Trust' in Evan J. Criddle, Evan Fox-Decent, Andrew S. Gold, Sung Hui Kim, and Paul B. Miller (eds), Fiduciary Government (Cambridge University Press 2018) (forthcoming)
    All public power is held in trust. That explains the attraction of the fiduciary theory of government, which treats the duties of trustees and other fiduciaries in private law as an explanatory analogue for the duties of public officials and agencies, including the state. But I argue that, although public agencies have many fiduciary duties, and public officials generally have fiduciary duties to the agencies in which they serve the community, public duties are not generally fiduciary. Public power is held in trust in the sense that it is to be exercised for the public good. I seek to explain the fundamental difference between that duty of service to a community, and the fiduciary’s duty to serve the interests of beneficiaries.
    ISBN: 9781108155267
  • H Collins, 'The Revolutionary Trajectory of EU Contract Law towards Post-national law' in Sarah Worthington Andrew Robertson Graham Virgo (ed), Revolution and Evolution in Private Law (Hart Publishing 2018)
    Examines the nature of EU contract law, with particular emphasis on its techno law characteristics of instrumentalism, functionalism, and incompleteness, with a view to explaining how it requires legimation and effectiveness by appeals to legal materials that consist mainly of fundamental rights drawn from the EU Charter of fundamental rights. This change in the source of law is revolutionary in the sense that it bases the regulation of private relations on rights rather than rules, and those rights are supra national sources of law.
    ISBN: 978-1-50991-324-4
  • J Rowbottom, 'The transformation of obscenity law' (2018) 27 Information & Communications Technology Law 4
    DOI: 10.1080/13600834.2017.1393929
    This article looks at the number of convictions for a group of offences categorised as obscenity-related in the official statistics. While the aggregate numbers show a dramatic rise, this article examines the trends in relation to the individual offences. The article shows that the law of obscenity has undergone a significant transformation. A central change has been the shift from the publisher as the target for criminal liability to the viewer of the content (for example, through the introduction of possession offences). A further change is the move away from the reliance on broadly worded offences to provisions that target a narrower range of content. Those two changes explain why the number of convictions has sharply increased while the law has become more permissive as to the types of content that can be published. The discussion places these changes into context, looking at the original rationale for the offences and how the interpretation and usage of the legislative provisions has evolved with the system of communication and distribution.
    ISBN: 1360-0834
  • J Adams-Prassl and M Risak, 'Working in the Gig Economy – Flexibility Without Security?' in R Singer and T Bazzani (eds), European Employment Policies: Current Challenges (Berliner Juristische Universitätsschriften – Zivilrecht Band 76 2018)
  • A Adams and J Adams-Prassl, Zero-Hours Work in the United Kingdom ((2018) ILO Conditions of Work and Employment Series 101 2018)
    In this report, we provide a detailed study of zero-hours work in the United Kingdom. An initial section defines zero-hours work, emphasising key characteristics as well as overlaps between zero-hours work and other casual work arrangements, and draws parallels both with historic instances of on-demand work and current experiences of ‘if and when’ contracts in the Republic of Ireland. Section two presents the most recent available data on the prevalence and key characteristics of zero- hours workers and employers, explaining the evolution of such work arrangements as well as the technical issues which make measuring the phenomenon through official labour market statistics particularly difficult. Section three complements the empirical evidence with an analysis of the effects of zero-hours work for workers, employers, and society more broadly. Our focus is not limited to the legal situation of those working under such arrangements, but also includes questions of social security entitlements, and wider implications such as business flexibility, cost savings, and productivity growth. As the fourth section explains, a growing awareness of the growth of zero-hours contracts from 2011 onwards brought about a marked increase in public discussion of the phenomenon, leading eventually to (limited) legislative intervention. We explore the positions taken by the social partners, before analysing historical as well as recent legislative responses, and setting out a case study of Parliament’s response to a particularly egregious instance of labour standards violations in warehouses operated by the sports equipment chain Sports Direct. A brief concluding section, finally, turns to a series of policy recommendations and broader considerations, with a view to finding a model in which (some of) the flexibility of zero-hours work arrangements might be preserved, without however continuing to pose a real threat to decent working conditions in the United Kingdom’s labour market.
    ISBN: 2226-8944
  • G Dinwoodie and RC Dreyfuss, 'Brexit and IP: The Great Unraveling?,' (2017) 39 Cardozo L Rev (forthcoming)
    In theory, exit from Brexit will free the United Kingdom from the constraints and burdens of EU membership. It will transfer sovereignty back to the people from the technocratic rule of Brussels; replace the jurisprudence of the Court of Justice with the adjudicative power of national courts; and allow the UK to tailor its market regulation in the particular exigencies of the UK economy. Whether, as a general matter, the restoration of a classic Westphalian state enhances value either nationally or globally is an issue we leave to others to debate. We ask a different question: we explore how well the rhetoric of Brexit comports with the reality and the institutional economics of nation-state lawmaking in an era of global trade and digital communication technologies. We use intellectual property law as a concrete example. We think it a good place to consider, with potentially broad significance. Copyrights are deeply intertwined with culture and education; patents have significant implications for health and safety; and trademark law sets the rules of the road for the marketplace in products and services. Since the critique of one-size-fits-all intellectual property regimes is well-known and widely accepted, some might think that this were an area where the United Kingdom would quickly move to restore self-rule. And yet global intellectual property rights are intimately associated with the incentive system of the Knowledge Economy writ large. Moreover, intellectual property mediates the infrastructure of the modern—global—business environment. We conclude that, not only are some of the supposed sovereignty gains of Brexit unlikely to be realized by the United Kingdom (because of the web of international, regional and bilateral obligations that exist in the field) but that many of the efficiency gains of harmonization that flowed from EU membership have been vitally important to the climate for innovation in the United Kingdom. If wholly jettisoned, they would adversely affect that climate in the EU. Thus, we explore how such gains might be reconstructed in a post-Brexit environment. We foresee some room for national experimentation. But we also predict an increased importance of transnational private ordering as means of efficiency gains, the rise of “technocratic” harmonisation, and the development of different forms of political convergence. While our study is limited to Intellectual Property, we believe that many of the features that we discuss are true of other areas of law as well.
  • JA Armour, C Mayer and A Polo, 'Regulatory Sanctions and Reputational Damage in Financial Markets' (2017) Journal of Financial and Quantitative Analysis 1429
    DOI: doi:10.1017/S0022109017000461
    We study the impact of the enforcement of financial regulation by the United Kingdom’s regulatory authorities on the market price of penalized firms. Existing studies rely on analyses of multiple events that may distort the measurement of reputational losses. In the United Kingdom, the entire enforcement process involves only one public announcement and is accompanied by complete information on legal penalties. We find that reputational losses are nearly nine times the size of fines and are associated with misconduct harming customers or investors but not third parties.
    ISBN: 0022-1090
  • P Eleftheriadis, 'Two Doctrines of the Unwritten Constitution' (2017) 13 European Constitutional Law Review 525
    Abstract -The Gina Miller judgment of the United Kingdom Supreme Court will be famous for its protection of the rule of law against an overreaching executive. But it should also be remembered for affirming the systematic nature of the British unwritten constitution. The Supreme Court rejected the older theory of the constitution, on which some of the government’s submissions relied, according to which the British constitution is based on the political fact of parliamentary sovereignty (or an equivalent ‘rule of recognition’) and is for that reason different from that of all other states. This was the view outlined by A. V. Dicey and endorsed by the British legal community for almost a century. The Supreme Court majority (and it is possible that the minority does too) relies on a different theory of the constitution, widely described as the ‘common law’ theory, which is a better fit with constitutional history. For the majority, the UK’s constitution is higher law made by the conscious decisions of a legislature like all other law. Joining the EU was a constitutional change brought about by parliament. For this reason withdrawal from the EU and its precise terms must also be decided by an act parliament. The Supreme Court considers the unwritten constitution to be a system of principles of the rule of law, whose origins lie not in a fact of sovereignty (or in the identity of the underlying ‘political community’) but in the legal transformation of the United Kingdom three centuries ago by way of the Bill of Rights 1688, the Act of Union 1707 and other constitutional statutes that created the higher law of the constitution.
    ISBN: 1744-5515
  • G Dinwoodie, 'A Comparative Analysis of the Secondary Liability of Online Service Providers' in G Dinwoodie (ed), Secondary Liability of Internet Service Providers (Springer 2017)
    This Chapter analyzes the secondary liability of online service providers from a comparative perspective, drawing on national reports on the question submitted to the Annual Congress of the International Academy of Comparative Law. The Chapter highlights two different approaches to establishing the circumstances when an intermediary might be liable: a “positive” or “negative” definition of the scope of liability. The former flows from the standards for establishing liability; the latter grows out of the different safe harbour provisions that immunize intermediaries operating in particular ways, although there can obviously be connections between the standard for liability and the conditions for immunity. The Chapter also considers the mechanism (“Notice and Takedown”) that in practice has come in many countries to mediate the responsibilities of right owners and service providers for a range of unlawful conduct that occurs using the facilities of the service providers. This mechanism typically reflects OSP responses to potential secondary liability, and have developed both in contexts when that liability is defined positively and when it is framed in negative terms. But regardless of the varying impetus for the mechanisms, they are largely implemented through private ordering (with some of the concerns that attends any such activity) that is subject to differing level of public structuring and scrutiny. The Chapter also addresses the concept of (judicially-enforceable) “responsibility without liability”, a growing feature of the landscape in this area, especially but not exclusively in the EU. Service providers in several fields, most notably intellectual property law, are being required actively to assist in preventing wrongdoing by third parties regardless of their own fault (but for example, engaging in so-called “web-blocking” of allegedly infringing sites). These mechanisms, found in several legislative instruments but developed in greater detail by courts through applications in private litigation, operate to create a quasi-regulatory network of obligations without imposition of full monetary liability. The Chapter concludes by considering briefly whether generally applicable principles can be derived from, and extended beyond, the specific context in which they first arose. This analysis leads to two central propositions, which it is argued hold true descriptively and warrant endorsement prescriptively. First, an assessment of secondary liability cannot be divorced from (and indeed must be informed by) the scope of primary liability or other legal devices by which the conduct of service providers or their customers is regulated. And, second, despite the claims that secondary liability is simply the application of general principles of tort law, secondary liability is rarely a subject-neutral allocation of responsibility among different potential defendants according to autonomous principles of fault; rather, it maps in part to the policy objectives of the different bodies of law where the claim of (secondary) liability arises.
    ISBN: 978-3-319-55030-5
  • S Enchelmaier, 'A doctrine at sea, on a jet ski: Recent developments in the ECJs case-law on goods and services' in Mads Andenas (ed), The reach of free movement (Springer 2017)
  • L Enriques, 'A Harmonised European Company Law: Are We There Already?' (2017) International and Comparative Law Quarterly 763
    To what extent is EU company law harmonized? This article first makes the point that little progress has been made in the direction of company law uniformity within the EU. It then argues that, even leaving aside the question of whether it would be desirable to have a uniform EU company law, that outcome is simply impossible to achieve, due to interest group resistance and the variety in national meta-rules. Yet it concludes that, in a narrow meaning, European company laws have indeed been harmonized: European Member States company laws fit together, which may well be what harmonization, not only etymologically, is all about.
    ISBN: 0020-5893
  • N. W. Barber, 'A Note on the Separation of Powers' in Mark Elliott and Robert Thomas (eds), Public Law (Oxford University Press 2017)
  • J Freedman, 'A Taxing Question ' in (ed), The Brexit Balance Sheet, Public Finance Perspectives (CIPFA 2017)