We are delighted to announce the first issue of the LSE Law School’s Legal Studies Working Paper Series for 2023.
In this issue, Eva Micheler and Elena Christine Zaccaria (WPS 1/2023) use empirical evidence to analyse the current model of holding uncertificated securities, examine the mandate of the recently set-up Digitisation Taskforce, and argue that financial services providers lack an incentive for reform by consensus and legislation or regulation is required to impose a duty on custodians to facilitate the exercise of corporate rights by investors; Jeremy Horder and Gabriele Watts (WPS 2/2023) discuss senior corporate managers’ criminal liability in light of the general developments in the law of criminal complicity and argue that while the theoretical basis justifies extending directorial criminal liability to cases where a director has consented to or connived at a crime committed by an individual employee under their control, the justification for imposing individual liability does not extend to crimes committed by others (including their company) solely on the grounds of individual neglect; Oliver Hailes (WPS 3/2023) explores Anne Orford's analysis of the role of history in international economic law, draws out the limitations of intellectual historians in capturing international law as technical argumentation, unravels the role of appeals to the past in trade and investment disputes, and clarifies the potential for historians to support international lawyers’ work by uncovering the uncanny connections between past and present; Jorge L Contreras (WPS 4/2023) notes that the lack of patenting of SARS-CoV-2 has facilitated global research collaboration and argues that proposed US legislation seeking to reintroduce pathogen sequence patenting should be rejected and a new international agreement recognizing the genomic sequences of pathogenic agents as global public goods free from intellectual property protection should be enacted to ensure that this data cannot be appropriated by individual researchers, institutions, or states; Oliver Hailes (WPS 5/2023) examines some implications of the prevention principle in international environmental law for energy investment arbitration, arguing that a State may object to jurisdiction or admissibility if an investment in fossil fuel production was void due to non-compliance with domestic regulations or customary international law and, on the merits, energy firms may not legitimately expect a State not to fulfil its duty of due diligence by adopting preventive measures, such as phase-out policies or mandatory abatement through carbon capture and storage; Michal Gal and Orla Lynskey (WPS 6/2023) examine how synthetic data, created using generative AI, challenges the equilibrium found in existing laws that balance data access and utility with privacy and other human rights and propose legal reforms to address these new and amplified data governance challenges; Giulia Gentile (WPS 7/2023) argues that UK’s world-leading use of facial recognition technology has tested the limits of democracy, and while the Bridges v. South Wales Police case provided guidance on balancing individual rights and lawful use, ethical and legal questions on regulation remain unsolved; Oliver Hailes (WPS 8/2023) traces the regulatory dimension of territorial sovereignty and its systemic integration in investment treaty interpretation reflected in arbitral references to the police powers doctrine, the right to regulate, and a margin of appreciation, then recalls the classical practice on the treatment of alien property in times of infectious disease and the proportionality inquiry mandated by Article 43 of the World Health Organization’s International Heath Regulations to underscore the customary presumption of reasonable regulation in the social and economic aftermath of a public health emergency of international concern; Conor Gearty (WPS 9/2023) traces the colonial roots of anti-terrorism laws in liberal and liberal-democratic politics and argues that modern anti-terrorism laws have their origins in the ways in which colonial power dealt with the reactive violence of those whose lands were being appropriated and whose peoples were being subjugated in the name of colonial expansion; Jacob van de Beeten (WPS 10/2023) builds on the work of Paul Kahn to argue that the EU legal order can be understood as either project or system, suggests that the autonomy of EU legal order is either a means to realise EU objectives or an end in itself, casts doubt on the claim that autonomy operates in complete harmony with the telos the EU pursues and the ethos on which it is founded, and proposes that there exists a contingent and not a necessary relationship between the autonomy of the EU legal order and the objectives and values it pursues; David Dyzenhaus and Thomas Poole (WPS 11/2023) argue that comparative constitutional law often falls into two types of errors that either overlook important substantive dimensions of law or subsume the legal within the political or the cultural, and examine the contribution of four Commonwealth comparative constitutional law scholars, R.T.E. Latham, D.V. Cowen, Edward McWhinney and Geoffrey Marshall, in the context of the Voters Rights legislation and litigation in 1950s South Africa to reflect on the potential of this style of scholarship for addressing current issues of sovereignty, exclusion, and faux legality; Carol Harlow and Richard Rawlings (WPS 12/2023) explore the potential relationship between populism and administrative law by drawing on the literature on populism and highlighting possible implications of populist government for administrative law to consider constructive responses from classic models of administrative law to the populist challenge, and suggesting ways in which administrative law might contribute to a less depersonalised and more participatory system of public administration; and Thomas Poole (WPS 13/2023) frames ‘prerogative’ as a rudimentary expression of the command function that underpins all constitutional order and discusses the analytical and normative failures and successes of two models – ‘sovereign prerogative’ and ‘constitutional prerogative’ – to propose a better understanding of the place of prerogative within the order of rules that the constitution provides.