‘Two Sides of the Same Coin: EU Financial Regulation and Private Law’

“Private law norms used to govern the interactions between banks and clients, credit rating agencies and investors, or between financial firms. Nowadays, however, these relationships have also become subject to financial regulation at the EU and national levels. Financial regulation has increasingly determined how financial firms should behave in the contractual and extra-contractual domain, often using traditional private law as an instrument in the pursuit of public goals, such as financial stability, market efficiency, and consumer/investor protection …” (more)

[Olha O Cherednychenko, Oxford Business Law Blog, 12 May]

‘Properly understood, corporate law can’t do squat about sustainability’

“The European Commission review of company law mentioned in the previous post prompted European corporate law scholars Florian Möslein and Karsten Engsig Sørensen to argue that ‘Company law can be designed in ways to address the climate change problem, as sustainability and company law interact closely with one other’. Although they argue they are carving out a ‘middle ground’, which relies on ‘nudging’, I remain deeply skeptical …” (more)

[ProfessorBainbridge.com, 11 May]

Jabłonowska and Micklitz, ‘EU Consumer Law in 2020’

The paper presents an overview of the main developments in EU consumer law in 2020. It discusses the challenges for consumer protection related to the outbreak of COVID-19 pandemic, legislative developments in the field of collective redress and digital markets as well as selected judgments of the Court of Justice, with a focus on the consumer notion, unfair terms in financial markets and consumer protection in the platform economy.

Jabłonowska, Agnieszka and Micklitz, Hans-W, EU Consumer Law in 2020 (April 26, 2021).

Sven Bostyn, ‘Why a COVID IP Waiver Is not a Good Strategy’

The COVID-19 pandemic has a profound influence on all aspects of society. The development of successful vaccines in record speed is almost a miracle. But despite the successful development and approval of multiple vaccines, many people still die of this terrible disease, and there is an urgent need to see more vaccines manufactured and distributed across the globe.

The proposed COVID-19 IP waiver has been touted by some to be the perfect solution to a terrible problem. We all agree that there is a terrible problem of insufficient vaccines to inoculate the world population. An IP waiver is not a good strategy however, to tackle this crisis. There are multiple more effective solution conceivable which do not require a very disruptive IP waiver …

Bostyn, Sven, Why a COVID IP Waiver Is not a Good Strategy (May 10, 2021).

Richard Marcus, ‘COVID-19 and American Civil Litigation’

As it has in the rest of the world, Covid-19 has had a marked impact on civil litigation in America. In March 2020, the American Congress passed legislation to address many aspects of the Covid-19 crisis, including provisions about court operations, and the American rulemakers have been looking carefully at the civil litigation rules for our federal courts since then. The ultimate outcome remains uncertain, but the contours of possible change are emerging.

Marcus, Richard, COVID-19 and American Civil Litigation (2021) in Civil Courts Coping with COVID-19 195 (Bart Karns and Anna Nylund eds, Eleven International Publishers, 2021).

June Carbone, ‘A Consumer Guide to Empirical Family Law’

This Article will consider the framework for empirical work on family law, arguing that the failure to ask more sophisticated questions at the beginning of the research has limited its effectiveness. In this sense, Professor Peg Brinig’s work stands out for the creativity of the questions she has asked, her exploration of underutilized databases, and her work’s potential to serve as a foundation for a new paradigm for the integration of empirical work into family law theory.

This Article will discuss the way that theory – and the creation of discourses associated with it – informs empirical research. First, it will maintain that the influence of empirical work depends on the discourse in which it is embedded. Second, it considers the influence of Becker’s paradigm on legal and economic empirical research, reviewing the ways that Becker’s influence has diverted much of the empirical work away from more productive inquiries. In particular, it will suggest that Becker’s insistence on a narrow focus on ‘specialization’ between men and women misses the much more productive work that looks at specialization among men in the nineteenth century, specialization among women in the late twentieth century, and investment in children’s human capital as the driver of these trends. Third, it will explore the alternative sociological frames, which premise family change on cultural shifts, discounting the wholesale and multifaceted economic changes that contribute to the cultural shifts. In particular, this section will suggest that this literature misses the complex interaction between economics and culture in large part because growing inequality makes it impossible to discuss ‘culture’ as a unified concept remaking family practices. The last section will provide a ‘consumer guide’ to empirical family law research, identifying the missing pieces necessary to create more robust discourses connecting family change to family law and policy. This Article will conclude that class divisions along with racial and regional considerations constitute a critical lens for empirical research and that Professor Brinig’s work offers a foundation for alternative explorations of the interactions between family law and family dynamics.

Carbone, June, A Consumer Guide to Empirical Family Law (May 7, 2021). 95 Notre Dame Law Review 1593 (2020).

Shyamkrishna Balganesh, ‘The Institutionalist Turn in Supreme Court Copyright Jurisprudence’

Beginning with its 2002 decision in Eldred v Ashcroft and thereafter continuing in the Roberts Court through its most recent decision in Google v Oracle, the US Supreme Court has embarked on an approach to copyright law best characterized as its ‘institutionalist turn’. The institutionalist turn refers to the reality that over the last decade and a half, the Court’s copyright jurisprudence has come to focus less and less on directly resolving substantive issues within the landscape of copyright doctrine. It has instead become a principal site of debate and disagreement over issues that have a direct bearing on the role, competence, and legitimacy of the Court within the copyright system.

The Court’s institutionalism in copyright is seen to cluster around three analytically interrelated themes: (i) the Court’s role as faithful agent interpreting Congress’s directives as contained in the complex Copyright Act of 1976, (ii) the nature of legislative-judicial interaction and deference in the domain of copyright lawmaking, and (iii) the continuity – or lack thereof – between copyright’s adjudicative mechanisms and other legal areas. This Article analyzes the origins and entrenchment of the Court’s institutionalism in its copyright jurisprudence and argues that while it may have allowed the Court to steer clear of divisive copyright issues in order to preserve its own legitimacy, it has at the same time made the Court an outsider to the modern copyright system and hurt the development of copyright doctrine and policy.

Balganesh, Shyamkrishna, The Institutionalist Turn in Supreme Court Copyright Jurisprudence (May 5, 2021). 2021 Supreme Court Review (forthcoming).

Russell Powell, ‘Spirit of the Corporation’

Christian theologians have analyzed the productive and destructive qualities of institutions, sometimes attributing to them human virtues and vices. In City of God, Saint Augustine describes a utopian vision of human community within a Christian context as an alternative to the flawed ‘City of Man’. Contemporary theologians and sociologists have described collective structures of human behavior in institutions as having a kind of ‘spirit’ analogous to the individual human ‘spirit’. Institutions are then assumed to take on an existence separate from the individuals within them, and in fact, the ‘spirit’ of an institution influences the behavior of individuals. In The 20th Century Capitalist Revolution, Adolf A Berle Jr considers the tradition of religious utopianism and whether corporate capitalism has a spiritual character that impacts communities and individuals for good or ill and whether this might have implications for corporate managers. This Article provides a contemporary theoretical framework for Berle’s insight as a basis for considering its legal and ethical implications for corporate governance. It attempts to unpack contemporary understandings of spirit in order to provide a helpful working definition. It also considers the origins and essential traits of the modern business corporation in the United States, and discusses the question posed by Berle – whether corporations can or ought to have a sort of moral orientation. The Article ponders potential policy shifts that might tilt the orientation of the ‘spirit of the corporation’ toward the common good and considers the limits of legal reform and the role of individuals and subgroups in changing corporate paradigms.

Powell, Russell, Spirit of the Corporation (May 4, 2021). Seattle University Law Review, volume 44, no 2, 2021.

Alessandro Mantelero, ‘The future of data protection: Gold standard vs global standard’

While GDPR has been described as the new gold standard for data protection, Convention 108 may represent the potential global standard in this field. The recent progressive expansion of the Council of Europe’s model and the modernised version of the Convention have revitalised its role in the global context.

In a multipolar world of different regulatory approaches where data protection legislation in many countries is still absent or in its early stages, Convention 108 could be seen as representing the embodiment of the Latin saying ‘in medio stat virtus’. Between the extremes of a weak safeguarding of individual rights and a gold standard, Convention 108 provides a solution that is good enough and workable in many different contexts, without necessarily reaching a gold standard.

Mantelero, Alessandro, The future of data protection: Gold standard vs global standard (October 30, 2020). Computer Law and Security Review.

Julian Flaux, ‘The future shape of business and property litigation after the pandemic’

… I am also responsible, in consultation with the President of the Queen’s Bench Division for the day to day running of the Business and Property Courts (‘B&PCs’), which include the Commercial Court and the Technology and Construction Court, both in London in the Rolls Building and in the seven regional centres. Today, I would like to share my thoughts about the challenges which face us in litigation in the B&PCs in the context of the global pandemic that has not recognised any land border! The future course for the resolution of disputes in the B&PCs has been irrevocably affected by our experiences over the last year or so and the rapid changes forced by the pandemic. So, before I look forward, I am briefly going to look back …

Rt Hon Sir Julian Flaux CHC, The future shape of business and property litigation after the pandemic, Scottish Civil Justice Conference, 10 May 2021.