The Law and Money Initiative
Law is normally regarded in orthodox economics as an external force that intervenes to facilitate and regulate market transactions which would otherwise take place. Such a perspective fails to recognise the fundamental importance of legal rules in constituting the financial system and global monetary order.
Established in 2018, the Law and Money Initiative (LMI) is a partnership between the schools of law at the Universities of Sheffield, Cornell and Manchester. LMI members aim to improve understanding of the relationship between law and money through insights derived from heterodox economics traditions, particularly Modern Monetary Theory. We explore money as a legal institution and study its contested role in modern economies.
The SMART Project
Several SICCL members, including Dr Jay Cullen, Professor Andrew Johnston and Dr Andreas Ruhmkorf, are investigators on the Sustainable Market Actors for Responsible Trade (SMART) Project, which studies the barriers and drivers for market actors' contribution to the UN Sustainable Development Goals. SMART is a 2.5 million EURO Horizon 2020 Project, led by lawyers at the Law Faculty at the University of Oslo, principally, Professor Beate Sjafjell. SMART does research that serves to promote global, sustainable development within a circular, zero-emission economy compatible with the planetary boundaries and in line with international development goals. Researchers at Sheffield have contributed to a number of outputs from the project, including policy papers, book chapters and journal articles. SICCL also held a SMART-themed conference in September 2017.
Innovation and Sustainability in Law and Management
Professor Andrew Johnston (with Blanche Segrestin, Mines ParisTECH)
Around the turn of the twentieth century, and in parallel with the separation of ‘ownership’ and control, professional managers gradually took control of companies, bringing with them an ideology of balancing competing interests and engaging in innovation. This ongoing interdisciplinary project began with a historical analysis of the status of professional managers in company law, tracking the rise and fall of professional managers, as shareholder primacy corporate governance superseded managerialism. Two further analyses are planned. The first compares the law of corporate purpose in the UK and France, and evaluates how far this will create space for management to pursue sustainability and innovation strategies. The second examines the different ways in which institutional investors exercise their stewardship rights in order to identify which strategies are most conducive to innovation and sustainability.
‘The separation of directors and managers: A historical examination of the status of managers’ (2019) Journal of Management History (forthcoming) (co-authored with Blanche Segrestin and Armand Hatchuel)
‘From Balanced Enterprise to Hostile Takeover: How the Law Forgot about Management’ (2019) 39(1) Legal Studies 75-97 (co-authored with Blanche Segrestin and Armand Hatchuel)
Innovation Prizes in Historical Perspective
There has been renewed interest in recent years in using prizes and rewards to promote innovation. History has played a central role in public debates in the UK about the merits of such interventions, with the Longitude Prize 2014 being self-consciously modelled on its eighteenth century precursor. Similarly, historical case studies have been used extensively in the scholarly literature in this area. However, it is striking that there has been little engagement with parliament's role in rewarding inventors in the eighteenth and early nineteenth centuries and how this formed part of a broader system of rewards.
This project has four strands. The first strand explores the extent to which a more complete understanding of the historical use of prizes and rewards during the key period of Britain's industrialisation might inform current debates about alternatives to the patent system. The second looks at how Parliamentary rewards shaped important aspects of the patent system, including the doctrine of sufficiency of disclosure. The third looks at how medical practitioners engaged with the reward system. The final strand looks at the grant of rewards in the colonies, using New South Wales as a case study.
Privacy law, gender justice and end users' liability: 'revenge porn' and beyond
This research project, which was supported by a Leverulme Felowship explores the liability of viewers and intermediaries (such as website operators and social media platforms) for ‘revenge porn’ – the unauthorised dissemination of intimate images. The theoretical framework is informed by three distinctive features: the gendered nature of the phenomenon (social); the relevance of technology to harm and perpetration (technological) and the potential overlap between (sexual) privacy and defamation – the area of law protecting reputation – and between privacy and data protection.
The inquiry highlights four points: (1) The harm from revenge porn is unique; Therefore, both the complete immunity under American law, and the notice and take down EU regime are inappropriate to tackle revenge porn cases. (2) When private information is understood as property, and posting of unauthorised intimate images as theft, the analogy with conflicts over title between remote parties clearly supports strict liability of platforms. (3) First principles (control over harming activity; for profit business model; victim’s right to effective remedy) and analogy to other situations involving intermediary liability (offline publication in defamation, nuisance and occupiers’ liability in negligence) show that the complete intermediaries’ immunity under American law cannot be supported. (4) ‘Revenge porn’ is a spectrum which includes at the extreme end child pornography. Both violations involve mass sexual abuse and complex causation and attribution mechanisms, including the need to apportion liability of viewers.
Tsachi Keren-Paz and Richard Wright, ‘Liability for mass sexual abuse’ (2019) 56 American Criminal Law Review 185-233
Diversifying Ownership of Land? Communal Property in the UK and China’, 2014-2017
British Academy International Partnership and Mobility Scheme
Communal property is increasingly important in both the UK and China. Although the history and present structure of land rights in the two regions is very different,communal property nevertheless emerges in both regions as a key component in the management of resources, notably in four related areas: agriculture,environmental protection, rural and urban development and housing. This project will establish a new research network between UK and Chinese scholars with mutual research interests in communal property and community governance of land and natural resources, exploring the lessons each can learn from the other about the developing role of communal property in these four areas.
Although the current focus is a China/UK Comparison, we welcome approaches from academics and practitioners interested in communal property from regional and global perspectives.
Corporate Social Responsibility (CSR) and Global Supply Chains
Dr Andreas Rühmkorf and Professor Genevieve LeBaron (SPERI)
CSR is discussed in different academic disciplines such as Management Studies, Politics and Law, and as a result, this project is highly interdisciplinary in nature. With the growing importance of CSR, many companies have adopted CSR standards pledging to conduct business in a responsible manner.
This project analyses regulatory approaches to CSR and, in particular, in the interaction between private and public regulatory mechanisms and their contribution to hybrid regulatory models of promoting CSR in global supply chains. In the short-term, this project will result in a paper on the Modern Slavery Bill, which will inform further research initiatives going forward focusing on the the regulatory role of the home state of multinational enterprises in promoting greater CSR.
Liability versus innovation: unpacking key connections
(with Associate Professor Tina Cockburn, Queensland University of Technology; Professor Alicia El Haj, Keele University; Dr Michael Fay, Keele University and Richard Goldberg, Durham University)
This ESRC-funded project was conceived in response to perceptions of scientists and clinicians that, despite the pro innovation rhetoric in Government policy documents, the threat of malpractice liability might stifle innovative treatment (IT). It addressed: Empirical questions: what is the extent of defensive medicine and of stifled innovation; is this a real problem; and if so, in what areas of medicine? Methodological questions: how to define and measure innovation; the extent to which changes in legal rules affect levels of defensive medicine and innovation; and the relative weight of tort liability and of disciplinary proceedings in causing defensive medicine and stifled innovation. Normative questions: how to balance the interests of clinicians, patients and society; how best to encourage responsible innovation; whether the regulation of ITs and research should change and/or be more closely aligned.
Key findings included that there is no support for such fears in the UK or Australian context; that there might be jurisdictional differences so claims that such a problem exists in the US cannot necessarily be carried over to the UK; that the reform offered by the Medical Innovation Bill was ill founded, but that there was no consensus whether a better crafted reform is needed or possible; and that no fault compensation to those injured from innovative treatments seems affordable and fair and is unlikely to stifle innovation.
A special issue in (2019) 11:1 Law, Innovation and Technology (Keren-Paz and Cockburn eds).
Keren-Paz, Cockburn & A El Haj, introduction, ‘Regulating innovative treatments: Information, risk allocation and redress’ (2019) 11:1 Law, Innovation and Technology.
Tsachi Keren-Paz, ‘No-fault (strict) liability for injuries from innovative treatments: fairness or also efficiency?’, (2019) 11:1 Law, Innovation and Technology.
Keren-Paz, Cockburn and El Haj ‘Does fear of legal action (tort liability) stifle innovation?’ (2017) 9 Impact: - Social Sciences and Humanities 36-38.
International experience of community, communal and municipal ownership of land: Community, communal and municipal ownership of land
Commissioned by the Scottish Land Commission, SRUC in cooperation with the James Hutton Institute, the University of the Highlands and Islands and the University of Aberdeen and Ting Xu, is conducting a review of international experience of community, communal and municipal land ownership.
The project will explore relevant forms of community, communal and municipal land ownership outside Scotland, particularly focusing on the interaction between governance structures, management objectives, the distribution of land rights and cultural perceptions. Lessons for Scotland will be provided from this international experience.
Injury to autonomy as actionable damage in negligence, contract and consumer protection
The project examines whether injury to autonomy (ITA) ought be compensated as a stand alone injury in negligence, contract law and consumer law, and the extent to which it is remedied in different jurisdictions including England, Israel, Singapore and the USA. Major findings are that it is useful to distinguish between three types of ITA but courts often confuse them, that the constitutive elements of a stand-alone claim are significant choice, reliance interest and irreversibility, that English law protects ITA as actionable, so that Shaw v Kovac could be explained away, but that it remedies ITA inconsistently and in a gender-biased way; and that ITA ought to be protected in appropriate cases as a stand alone injury.
Tsachi Keren-Paz, ‘Gender Injustice in Compensating Injury to Autonomy in English and Singaporean Negligence Law’ (2018) Feminist Legal Studies 1-23.
Tsachi Keren-Paz, ‘Compensating Injury to Autonomy in English Negligence Law: Inconsistent Recognition’ (2018) 26(4) Medical Law Review 585-609.
Tsachi Keren-Paz, ‘Compensating injury to autonomy: A conceptual and normative analysis’ in Barker, Fairweather & Grantham (eds.), Private Law in the Twenty-First Century (Hart, 2017) 411-37.
An earlier analysis of Israeli law became a major reference point in the literature and was cited in several Israeli Supreme Court decisions: Tsachi Keren-Paz, ‘Compensating Injury to Autonomy: Normative Evaluation, Recent Developments and Future Tendencies’ (2007) 22 Colman Law Review 187-266.
Informal Finance in China: Risks, Potential and Transformation
This an interdisciplinary research project exploring informal finance in China, the risks it is generating, its potential to support economic growth, and its transformation in the light of new technologies and a developing regulatory agenda. The work is being carried out by the Cambridge Business Center for Research in collaboration with the School of Law, University of Sheffield, the School of Law, Renmin University, Beijing, and the College of Finance and Statistics, Hunan University. The project is funded by ESRC and has the following aims:
- To understand the potential, but also the limits, of systems of informal financing in China
- To analyse the relationship between formal and informal finance in China
- To examine the risks posed by China’s shadow banking system
- To study the emergence in China of new forms of financing using big data and cloud computing to drive financial innovation, including P2P lending, crowd funding and similar collective investment schemes
- To explore the scope for the development of social credit systems in China.