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  • G Wagner and H Eidenmüller, 'Down by Algorithms? Siphoning Rents, Exploiting Biases and Shaping Preferences – The Dark Side of Personalized Transactions' (2019) 86 The University of Chicago Law Review 581
    In this Essay, we seek to systematically explore and understand crucial aspects of the dark side of personalized business to consumer (B2C) transactions. We identify three areas of concern. First, businesses increasingly engage in first-degree price discrimination, siphoning rents from consumers. Second, firms exploit widespread or idiosyncratic behavioral biases of consumers in a systematic fashion. And third, businesses use microtargeted ads and recommendations to shape consumers’ preferences and steer them into a particular consumption pattern.
  • M Bianchi, L Enriques and M Milic, 'Enforcing Rules on Related Party Transactions in Italy: One Securities Regulators’ Challenge' in L Enriques and T Tröger (eds), The Law and Finance of Related Party Transactions (Cambridge University Press 2019)
    DOI: https://doi.org/10.1017/9781108554442
    This paper is the introductory chapter of Luca Enriques and Tobias Tröger (eds.), The Law and Finance of Related Party Transactions (Cambridge University Press: forthcoming). Its goal is to sketch out the individual chapters’ contributions to the scholarly and policy debates on the adequate regulation of related party transactions (RPTs). For that purpose, we scope the issue by highlighting the principal costs and benefits of shareholder control, which allows both the implementation of entrepreneurial vision and various forms of rent-seeking. We next proceed by putting the challenges of regulating RPTs into the broader context of conflicts of interest and tunneling techniques. Against this background, we then turn to the main regulatory options available for legislators (independent/disinterested director approval, majority of the minority approval, ex post fairness review, and involvement of supervisory agencies), highlighting some of the key insights on each of them from individual chapters. Finally, we show how the chapters in the book can also inform European legislators who are currently in the process of implementing the revised Shareholder Rights Directive rules on RPTs.
  • P P Craig, 'Engagement and Disengagement with International Institutions: The UK Perspective' in C Bradley (ed), The Oxford Handbook of Comparative Foreign Relations Law (Oxford University Press 2019)
  • Elizabeth Fisher, Bettina Lange and Eloise Scotford, Environmental Law: Text, Cases and Materials (2nd Ed OUP 2019)
    ISBN: 9780198811077
  • J Armour and L Enriques, 'Equity Crowd Funding: An Acid Test for Securities Regulation' in Franklin Allen, Ester Faia, Michael Haliassos and Katja Langenbucher (eds), Capital Market Union and Beyond (MIT Press 2019)
    ISBN: 9780262042765
  • JA Armour and L Enriques, 'Equity Crowdfunding: An Acid Test for Securities Regulation?' in F Allen, E Faia, M Haliassos and K Langenbucher (eds), Capital Markets Union and Beyond (MIT Press 2019)
  • P Davies, 'Financial Stability and the Global Reach of EU Law' in Marise Cremona Joanne Scott (ed), EU Law Beyond EU Borders (OUP 2019)
    This chapter considers the influence of European Union law in the post-crisis regulation of financial institutions. The global nature of the financial crisis of 2007-2009 created incentives for jurisdictions to “export” their legislative solutions globally, in order to promote domestic stability. The chapter begins by using an analysis of the development of the crisis from a domestic US sub-prime lending problem into a global lack of trust in financial institutions, with a consequent credit crunch and state bail-outs of the biggest failing institutions, to illustrate these incentives. However, a crude strategy of export is likely to produce adverse reactions from other jurisdictions. The potential for friction was reduced by two developments. First, a rapid expansion of international standards of financial regulation and, second, using some form of mutual recognition strategy at the level of individual jurisdictions. The chapter argues that the European Union had relatively little influence on the first strategy because representation of “Europe” within international standard-setters is still dominated by the individual Member States rather than by the EU institutions. On the other hand, with the adoption of a Union level common rule book, implementation of the second strategy did fall into the hands of Union institutions. The second part of the chapter consists of a case study of the long drawn-out process whereby the EU and the US achieved recognition of each other’s rules on central counterparties for derivatives clearing. Despite the existence at G20 level of an agreement on the central clearing of derivatives, which both the EU and the US sought to implement, achievement of mutual recognition on this topic was slow, marked by bad-tempered interchanges and initially developed through a process likely to highlight differences rather than commonalities. The chapter concludes by exploring some possible explanations for this history and examines the potential operation of the equivalence regime in a post-Brexit world. Financial crisis; international standards; mutual recognition; central clearing; equivalence.
    ISBN: 978 0 19 884217 0
  • G Wagner and H Eidenmüller, 'In der Falle der Algorithmen' (2019) Frankfurter Allgemeine Zeitung
  • G Wagner and H Eidenmüller, 'In der Falle der Algorithmen? Abschoepfen von Konsumentenrente, Ausnutzen von Verhaltensanomalien und Manipulation von Praeferenzen: Die Regulierung der dunklen Seite personalisierter Transaktionen' (2019) Zeitschrift fuer die gesamte Privatrechtswissenschaft 220
  • R Ekins, 'Intentions and Reflections: The Nature of Legislative Intent Revisited' (2019) 64 The American Journal of Jurisprudence 139
    This article reflects on the argument of The Nature of the Legislative Intent, replying in part to thoughtful comments and criticisms made by contributors to this symposium. The reply opens by considering the methodology that underpins the book and the choices made in its deployment. The focus on the central case of legislative action is grounded in sound philosophy, which recognizes the explanatory priority of good reasons over bad. Reflecting on the moral need for legislation helps to articulate the internal point of view of the reasonable legislator, from which perspective the structure of legislative action is made clear. Likewise, reflection on the social ontology of group action confirms that legislators are able to act jointly to make reasoned choices together despite disagreeing about what ought to be done. The legislative assembly represents the people, leading and sharpening a public conversation about the common good. In enacting a statute, the legislature articulates a lawmaking choice by uttering the statutory text in its context. Interpreters can and should infer the legislature’s intentions in enactments and skepticism about the relevance of legislative intentions to statutory interpretation is unwarranted.
  • N Barber, M Cahill and R Ekins, 'Introduction' in N Barber, M Cahill and R Ekins (eds), The Rise and Fall of the European Constitution (Hart Publishing 2019)
    DOI: 10.5040/9781509910977.ch-001
    The Draft European Constitution could have been, and almost was, one of the defining constitutional events of the early part of the twenty-first century. It was certainly amongst the most ambitious. It drew elements from the constitutional traditions of the nation state, and applied these features to the European Union. Though the extent of its ambitions is debated in this volume, it can be seen both as an attempt to constitutionalise the Union, re-framing that project in the language of the state and as an attempt to stretch the boundaries of constitutionalism itself, re-imagining that concept to accommodate the sui generis European Union. The (partial) failure of this project is the subject of this collection of essays.
    ISBN: 9781509911004
  • P Davies, 'Investment Chains and Corporate Governance' in Louse Gullifer and Jenny Payne (eds), Intermediation and Beyond (Hart 2019)
    Long chains of intermediaries may constrain the right to vote. Information about the voting opportunity may not reach the persons at the end of the chain in time for them to formulate a considered view, and instructions about how those persons wish to vote may not reach the company in time for the vote to be counted (or, perhaps,at all). These problems will be exacerbated if, as is the case in the UK, the person at the end of the chain of intermediaries and who has the economic incentive to vote, is not treated by the relevant corporate law system as the shareholder for the purpose of the exercise of voting rights. So long as voting was regarded as a private matter, it was possible to take a sanguine view of these problems. Various workarounds were available and those at the end of intermediary chains could make use of them, to the extent that the benefi ts of voting were thought to outweigh the costs of the work-arounds. In the current era of shareholder ‘ engagement ’ , where shareholders, especially institutional ones, are under public pressure to vote and to vote thoughtfully, difficulties in actually voting are much less easy to ignore. This chapter explores the operation of the current voting system where there are chains of intermediaries and some possible reforms.
    ISBN: 9781509919901
  • JA Armour, 'Legal Origin and Securities Fraud—A Comment' (2019) Lloyds Maritime and Commercial Law Quarterly 631
  • H Eidenmüller, 'Machine Performance and Human Failure: How Shall We Regulate Autonomous Machines?' (2019) 15 Journal of Business & Technology Law 109
    Machines powered by artificial intelligence (“AI”) are on the rise. In many use cases, their perfor-mance today already exceeds human capabilities. In this essay, I explore fundamental regulatory issues related to such “autonomous machines.” In doing so, I adopt an analytical perspective that highlights the importance of what this article refers to as the “deep normative structure” of a par-ticular society for crucial policy choices with respect to autonomous machines. This paper makes two principal claims. First, the jargon of welfare economics appears well-suited to analyze the chances and risks of innovative new technologies, and it is also reflected in legal doctrine on risk, responsibility and regulation. A pure welfarist conception of “the good” will tend to move a society into a direction in which autonomous systems will eventually take a prominent role. However, such a conception assumes more than the welfarist calculus can yield, and it also ignores the categorical difference between machine and human characteristic of Western legal systems. Second, taking the “deep normative structure” of Western legal systems seriously leads to policy conclusions re-garding the regulation of autonomous machines that emphasize this categorical difference. Such a humanistic approach acknowledges human weaknesses and failures and protects humans. It is characterized by fundamental human rights and by the desire to achieve some level of distributive justice. Welfaristic pursuits are constrained by these humanistic features, and the severity of these constraints differs from jurisdiction to jurisdiction. The argument is illustrated with legal applica-tions taken from various issues in the field of contract and tort.
  • H Eidenmüller, 'Machine Performance and Human Failure: How Shall We Regulate Autonomous Machines?' in N Aggarwal, H Eidenmüller, L Enriques, J Payne and K van Zwieten (eds), Autonomous Systems and the Law (München and Baden-Baden: C. H. Beck and Nomos 2019)
    DOI: http://dx.doi.org/10.2139/ssrn.3414602
    Machines powered by artificial intelligence (AI) are on the rise. In many use cases, their performance today already exceeds human capabilities. In this essay, I explore fundamental regulatory issues related to such “autonomous machines”. I adopt an analytical perspective that highlights the importance of what I call the “deep normative structure” of a particular society for crucial policy choices with respect to autonomous machines. I make two principal claims. First, the jargon of welfare economics appears well-suited to analyse the chances and risks of innovative new technologies, and it is also reflected in legal doctrine on risk, responsibility and regulation. A pure welfarist conception of “the good” will tend to move a society into a direction in which autonomous systems eventually will take a super-prominent role. However, such a conception assumes more than the welfarist calculus can yield, and it also ignores the categorical difference between machines and humans characteristic of Western legal systems. Second, taking the “deep normative structure” of Western legal systems seriously leads to policy conclusions regarding the regulation of autonomous machines that emphasize this categorical difference. Such a humanistic approach acknowledges human weaknesses and failures and protects humans, and it is characterized by fundamental human rights and by the desire to achieve some level of distributive justice. Welfaristic pursuits are constrained by these humanistic features, and the severity of these constraints differs from jurisdiction to jurisdiction. I illustrate my argument with legal applications taken from various issues in the field of contract and tort.
  • R Ekins, 'Models of (and Myths About) Rights Protection' in L Crawford, P Emerton and D Smith (eds), Law Under a Democratic Constitution: Essays in Honour of Jeffrey Goldsworthy (Hart Publishing 2019)
    DOI: 10.5040/9781509920884.ch-011
    The doctrine of parliamentary sovereignty is the centrepiece of the British constitutional order, an order in which Parliament is free to choose what should be law and in which courts enjoy no authority to quash statutes by reference to human rights law. Jeffrey Goldsworthy is today the foremost scholar of that doctrine, as was Albert Venn Dicey in an earlier age. The significance of Goldsworthy’s work lies not only in its painstaking exposition of the historical and jurisprudential foundations of the doctrine, but also in its measured yet forceful defence of entrusting Parliament with responsibility for final lawmaking choice. This chapter evaluates and elaborates that defence, aiming to elucidate the constitutional architecture of representative self-government. It begins, in section II., by considering Goldsworthy’s contingent case for legislative supremacy. The argument is powerful, but at times risks understating the strength of the case for the British model of rights protection, as Goldsworthy terms it. Like Goldsworthy, I argue that it is not for judges freely to choose how to protect rights: the positive law of the constitution settles whether they have authority to quash statutes. The chapter goes on, in sections III. and IV., to consider Goldsworthy’s refutation of two myths: first, that there is an ancient common law constitution which transcends and disciplines parliamentary sovereignty; and second, that immanent within all democracies in the common law tradition is one model of rights protection. He refutes the second myth in part by noting the Canadian, British and New Zealand experiments in empowering courts in relation to human rights law, while preserving the capacity of legislatures to override judgments. The final part of the article, section V., considers Goldsworthy’s argument that this hybrid model avoids the democratic critique of judicial review. I argue that the hybrid model is not a stable, attractive alternative to the British model that Goldsworthy’s work does so much to explain.
  • P Davies and Klaus Hopt, 'Non-Shareholder Voice in Bank Governance: Board Composition, Performance and Liability' in D Busch, G Ferrarini, G Van Solinge (ed), Governance of Financial Institutions (Oxford University Press 2019)
    Starting from the well-evidenced fact that banks with shareholder-focussed corporate governance fared worse in the financial crisis than those without, this paper considers various initiatives and proposals to re-orient board rules in relation to banks. The paper considers three type change. First, increased influence over board composition and behaviour without granting new rights of board representation to any group of persons. In this section we look at influence for the general public interest in bank stability via an increased role for bank supervisors in the selection and monitoring of bank directors and significant bank executives, and at an increased role for long-term creditors, in particular bondholders. The former is partly already in place and for the latter we suggest ways in which changes could be made, mainly via contract. Second, we look at influence via board representation, mainly for creditors but also for the public interest. We are sceptical about the scale of the benefits such representation is likely to afford and point out some of the costs of these proposals. Finally, we look at enhanced liability, whether regulatory, criminal or civil. There are many proposals for change in this area, some very far-reaching. We doubt the benefits of enhanced criminal liability, but think that more enforcement effort, especially in the regulatory field, but also as to civil liability, would yield positive results.
    ISBN: 978-0-19-879997-9

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