Law Scholars Research Articles

Institutional theory for corporate law: an invitation

ABSTRACT Reliance on agency-theoretic reasoning has led to substantial theoretical and empirical advances in company law scholarship, but the narrow focus on board-level actors and phenomena has disconnected the analysis of the company from the reality of the economic organisation it is meant to enable and support. We follow Oliver Williamson’s call for a ‘law, economics, and organization’ approach, and build on Elinor Ostrom’s ‘institutional analysis and development’ framework to propose a narrative model of the company in terms of nested levels of governance. We argue that our model works as a positive description of the law as it is, and puts us in a stronger position to evaluate the likely consequences of certain normative interventions, which we illustrate with some observations about ongoing debates in corporate governance.

Revisiting the history of colonialism and international law in Indonesia: the legacies of G. J. Resink

Power is exercised through truth claims, as seen in the case of Dutch colonialism in Indonesia. Gertrudes Johan Resink, a scholar of international law, successfully exposed the history of Dutch colonialism in Indonesia and demonstrated the pre-existence of international law before European expansion by considering the role of international law in Indonesia’s history. This article examines Resink’s legacy and the potential for elaborating further on his ideas in Indonesia’s history of international law. Although this article deals with a specific context, the Indonesian experience can contribute to the history and development of international law in the region more generally.

Navigating ethical and legal challenges in the HEALthy Brain and Child Development Study: Lessons learned from the ethics, law, policy working group

The HEALthy Brain and Child Development (HBCD) Study, a multi-site prospective longitudinal cohort study, will examine human brain, cognitive, behavioral, social, and emotional development beginning prenatally and planned through early childhood. The HBCD study has faced several ethical and legal challenges due to its goal of enrolling pregnant people (including those with substance use disorder) and their newborns. Challenges not fully anticipated at the outset emerged from the rapidly changing legal landscape around reproductive rights in the United States. By embedding scholars in bioethics and law within research teams and engaging them in conversation with each other and other study personnel, we were able to address many challenges proactively and respond promptly to unanticipated challenges. In this paper, we highlight several important ethical and legal challenges that arose from the first phase of funding through the beginning of participant enrollment. We explain the methods used to address these challenges, the ethical and legal tradeoffs that arose, and the resolution of challenges through the design of the study. Based on this experience, we provide recommendations for research teams, sponsors, and reviewers to address legal risks and promote the ethical conduct of studies with pregnant people and caregivers. We highlight the importance of collaboration with bioethics and legal scholars in studies involving complex and evolving legal risks, as well as the necessity of designing robust approaches to informed consent and maintaining participant trust while navigating ethical challenges in research.

Policies, Places and Practices: Why Environmental Law Scholars Should Care About the Levelling-Up and Regeneration Act 2023

Abstract The Levelling-Up and Regeneration Act 2023 has marked major reforms in how planning law legally conceptualises policies, places and practices. These reforms have an impact not only on the scope of planning law but also on the shape of environmental law in England and Wales. In particular, the Levelling-Up and Regeneration Act 2023 changes how different forms of national and local policy legally interact, creates new administrative regulation for protected landscapes and establishes a new framework for environmental impact assessment called the Environmental Outcome Reports. This introduction to the legislation illustrates the importance of understanding the planning law reform for environmental law scholarship more generally.

Lies my child welfare system has told me: The critical importance of centering families' voices in family policing legal advocacy

AbstractThe web of law, regulation and policy which forms the modern day “child welfare” system is organized around one central unifying principle: the notion that these laws, regulations and policies are necessary to protect and save children. Yet an ever‐growing and overwhelming chorus of “lived experts” – individuals who have been impacted as a parent and/or child by what is more aptly called the family policing system – as well as by advocates and scholars, are drawing attention to the degree of harm the system causes to the families it purports to help. Even though the harms the family policing system causes are well known, the family policing system continues to justify these harms as warranted in the name of protecting children. More concerning, even well‐meaning advocates and scholars who acknowledge the harms, implicitly and explicitly continue to perpetuate the big lie that the family policing system's intention is benevolent and caring. The impetus for any law is a story; law identifies a problem and seeks to resolve it. But what happens when the story is false? The stories we tell about the need for family policing perpetuate harm and replicate systemic racism. Most importantly, the impact of these false narratives can be felt through generations of families leaving devastated communities. The stories, perspectives and opinions of those most impacted by the system historically have been, and continue to be, intentionally left out of the making of law and policy, and even in the teaching of the law. Unless the actual perspectives of families are present to challenge the stories that are woven into the law, these narratives will continue to create significant obstacles to critical thought about the law, prevent meaningful legal change, and ultimately cause continued harm to families and communities. In this essay, in the tradition of participatory law scholarship (Note: Rachel Lopez, Participatory Law Scholarship, 123 Colum. L. Rev. 1795 (2023) [“Participatory Law Scholarship or (PLS)… is an emerging genre of legal scholarship written in collaboration with authors… who have no formal training in the law but rather expertise in its function and dysfunction through lived experience.”]), the authors, a parent and professional advocate, and a clinical law professor and attorney, seek to unpack the myths which are built into the laws of family policing. In reckoning with these myths, the paper seeks to propose a critical framework to both acknowledge the intentional trauma and harm caused by the family policing system, and to disrupt and dismantle the fictions that are the underpinnings of the laws and regulations that continue to perpetuate these harms. Ultimately, this paper argues that by centering the lived expertise of families' voices and perspectives in legal advocacy, we can form a cogent vision for true safety for families and communities.

Dialog Hukum Adat dan Islam: Kritik Syeikh Ahmad Khatib Al-Minangkabawi Terhadap Sistem Waris di Minangkabau

This research discusses the two main forces influencing Minangkabau society, namely custom and religion. The matrilineal system practiced in Minangkabau has significant differences compared to the Islamic kinship system, particularly in terms of inheritance distribution. These differences often become a source of conflict and academic interest, especially among scholars of Islamic law. One figure who firmly opposes the customary inheritance system in Minangkabau is Sheikh Ahmad Khatib al-Minangkabawi, a prominent scholar who served as Imam, Khatib, and teacher in Mecca. This study employs a library research approach with a descriptive analytical method to explore Sheikh Ahmad Khatib's critiques of the prevailing inheritance system. Sheikh Ahmad Khatib argues that customary practices that divert inheritance to nephews rather than biological children contradict Islamic principles. He even equates this action with consuming the wealth of orphans, a deed prohibited in Islam. During his time, there was ambiguity regarding the ownership status of property in Minangkabau society whether it belonged to a father or was property of the clan managed by the niniak mamak. When a father passed away, the inheritance that should rightfully go to biological children often ended up with nephews, leading to injustice. Sheikh Ahmad Khatib's sharp criticism emphasizes the need for reform in the customary inheritance system to align it with Islamic law and protect the rights of children, thereby reducing conflict and injustice in Minangkabau society in the future.

Natural law and unwritten law in Classical Greek thought

AbstractIt is a common mistake of contemporary natural law scholarship to overestimate the ancient Greeks' contribution to a meaningful theory of natural law and to mistake an appeal to unwritten law with natural law's criteria for normative validity. This paper was designed to elaborate on two interrelated queries. On the one hand, it labours to reconstruct the ancient Greeks' understanding of a hierarchy of law, which is answered in the affirmative. On the other hand, the paper inquires whether there existed any meaningful sense of natural law in the Classical period, to which question the Archytean nexus of law and natural justice is offered as a palpable compromise.

Making Sense of Interlinkages in EU Marine Environment Legislation: Unearthing Effectiveness

Crises such as water quality, pollution, climate change, overfishing, biodiversity, energy, waste, and carbon sequestration mean that legislation protecting the marine environment is under intense pressure to be effective and to demonstrate positive results in a vast array of public and private spheres. Thus far, scholarship of EU marine environmental law has been focused primarily on (i) interaction with international agreements (ii) spatial/jurisdictional studies (iii) analysis of new laws, plans and programmes (iv) principles (e.g. good environmental status, precautionary approach, polluter pays) (v) CJEU case analysis (vi) enforcement (vii) specific issues (plastics, litter…). However, over the years the mass constituted by the EU marine environment acquis has grown ever-larger, leading to risks of poor coordination, over-regulation in some areas and lack of regulation in others. By triangulating complementary investigatory methodologies, this study teases out systemic, diachronic and legilinguistic interlinkages—within and across key instruments as well as EU institutions, bodies and agencies. Our results provide avenues for policymakers nationally and at EU level to improve the legibility and coherence of marine environmental regulation—to the benefit of citizens and the wider body of stakeholders, and, ultimately, to benefit the marine world.

Environmental law and systems theory

AbstractIn 1985, German sociologist Niklas Luhmann published a monograph on ecology, which appeared in English translation in 1989 as Ecological Communication. It contained many original insights for ecological thinking and, despite being well‐reviewed upon publication, has had a relatively minor impact on Anglophone environmental discourse. This inattention is also present in environmental law, which has recently seen an increase in legal theories that challenge its mainstream. This contribution first investigates why Ecological Communication has received scant attention, pointing to changes in the climatic context in which it first appeared and the reactionary nature of its arguments. Recognising that the work nevertheless contains critical theoretical insights for environmental law scholarship, the second aim of the article is to spotlight what from Ecological Communication remains relevant at the hand of three common claims progressive researchers level against mainstream environmental law: The critique of law's marriage to Cartesian dualism, that law should be better informed by climate science,of and law's anthropocentrism. Finally, environmental lawyers are called upon not to ignore Ecological Communication but to engage with it fruitfully.

Reintroducing Derrick Bell into contemporary discourse: A review of ‘Racism and Resistance: Essays on Derrick Bell’s Racial Realism’

Edited by Timothy J. Golden, “Racism and Resistance: Essays on Derrick Bell’s Racial Realism” presents a diverse set of perspectives from scholars in philosophy, law, theology, and rhetoric that critically engage with and expand upon Derrick Bell’s theories and scholarly works. This review approaches this work from outside the disciplines of its contributors and evaluates the volume for its accessibility, interdisciplinarity, and application of Bell’s theory of racial realism in contemporary discourses on racism and anti-racism. “Racism and Resistance” is divided into four parts, each containing two chapters. This review focuses on Part 1 – Racial Realism, Religion, and the Negro Problem and Part 4 – Racial Realism and Theology, as they are excellent examples of both the disciplinary range of this book and the authors’ command of Bell’s body of work.

When Is it Right to Speak of Animal Rights?

Abstract This article examines the ways in which the language of legal rights is invoked by those seeking to improve the treatment of animals. Drawing from a range of analytical, realist, and critical legal and social theorists, it argues that certain argumentative techniques commonly employed to justify the extension of legal rights to animals may serve to strengthen and reproduce the very forms of exploitation they seek to challenge. The article begins by identifying and critiquing the binary characterisation of rights/welfare and property/personality in liberal animal law scholarship. It then employs the insights of Theodor Adorno and Walter Benjamin to expose and critique various appeals to an ‘exterior’ or ‘extra-legal’ domain which functions to stabilise the meaning of these doctrinal categories. In doing so, it explores the strategic viability of rights discourse in the animal advocacy movement with a view to highlighting the limitations of liberal constructions of animal rights.

What role for law in refugee studies? Towards a transdisciplinary agenda

Abstract Refugee law has historically formed an important part of refugee studies. Yet, in the past decades, the legal study of refugees has increasingly developed out of sync with refugee studies more generally. The purpose of this special issue is to help bridge the gap between refugee law and refugee studies and foster a broader transdisciplinary research agenda on law within refugee studies scholarship. The special issue serves two overarching purposes. The first is to exemplify and celebrate methodological heterodoxy in refugee law scholarship—deliberately foregrounding perspectives often marginalized within more mainstream legal scholarship. To this end, this issue presents a range of contributions that draw on methods and theories from different disciplines in the study of refugee law, including anthropology, history, psychology, political science, organization studies, and data science. Second, by anchoring this special issue in the Journal of Refugee Studies, we hope to convince the wider refugee studies community that empirical and interdisciplinary legal methods may provide new and important insights into some of the core debates on and long-standing challenges to refugee law.

Conceptualizing Worker-to-Worker Relations: A Comparative Perspective

Contemporary labour law scholarship places the relationship between employers and employees at the heart of its analysis, mostly disregarding relations between workers, especially if they belong to different organizations. This article argues that such an approach is one-dimensional and misses a central aspect of the experience of being a worker. It argues that the increasing complexity of the modern workplace requires a coherent scholarly account of this additional dimension of workplace dynamics.Attempting to address this blind spot, the article suggests conceptualizing worker-to-worker relations as a type of community: the ‘Worker-Community’. This new paradigm advances our understanding of the special characteristics, including duties and obligations, of relations between workers. The article further examines the range of potential legal implications of this model, from bullying and sexual harassment to the unregulated practice of underbidding in the gig or platform economy.

A legal cure for news choice overload: Regulating algorithms and AI with ‘light patterns’ to foster autonomy and democracy

AbstractDespite an unprecedented abundance of news content, both news avoidance and dissatisfaction are rising. Blending journalism, philosophy and law scholarship, this paper argues that ‘news choice overload’ causes paralysis and poor outcomes as it transfers power to algorithms, thereby harming autonomy and, in turn, democracy. An analysis of Australian and European regulatory responses shows the need for an algorithmic regulator and a transparency requirement for digital platforms. Further, people's ability to choose autonomously can be fostered by positive interventions, or ‘light patterns’, including ‘diversity nudges’ and a shift from caveat emptor to a caveat venditor approach, in which digital platforms are assigned legal responsibility. Recognising that it is autonomy and democracy—not choice per se—that are valuable, such interventions can shift meaningful decision‐making back to citizens at a moment when the rise of generative artificial intelligence is giving algorithms yet more power.

Theory in Comparative Law Scholarship

Abstract The main focus of this paper is the meaning of the term “theory” in comparative law. It examines the comparative law theory literature and conducts an in-depth analysis of a sample of articles from two journals (ajcl and ejclg). Theory is considered very important in legal scholarship. ajcl articles are usually more “theory-thick” than their European counterparts. Nevertheless, the majority of European literature also places a strong emphasis on theory-related language. Yet, it is often unclear why authors used these words or what they contributed to the paragraph, section, or research objective. None of the articles reviewed discussed or acknowledged the polysemous nature of theory. This lack of clarity and transparency may hinder the progress of comparative law scholarship.

A shadowy negotiation involving dams and its fiscal and legal implications: a Portuguese case study

Purpose This paper aims to explore the intricate and controversial sale of six hydroelectric dams in the Douro hydrographic basin by Energias de Portugal (EDP), a prominent Portuguese energy company, to a French Consortium – ENGIE. The transaction, completed at the end of 2020, has sparked significant debate and scrutiny within the Portuguese legal and fiscal spheres due to its corporate and budgetary manoeuvres. The crux of the controversy lies in the complex corporate restructuring strategies used by EDP and the acquiring consortium to execute this transaction. These strategies, aimed at achieving tax neutrality, effectively circumvented the traditional tax liabilities typically associated with large-scale asset transfers. The paper delves into the legal intricacies of this operation, scrutinising the application of taxes such as stamp duty, corporate income tax, value added tax and property transfer tax, which were, in theory, applicable to the transaction. Furthermore, this study examines the broader implications of the deal, particularly concerning the principle of tax neutrality in corporate restructurings, the enforcement of anti-abuse clauses and the economic substance over legal form doctrine. Design/methodology/approach This study is based on secondary data supported by publicly reported evidence. Findings This case study highlights the challenges in taxing corporate transactions in the modern financial landscape and reflects these corporate manoeuvres' societal and ethical considerations. Originality/value Through an analysis of legal frameworks, corporate strategies and tax policies, this paper provides a comprehensive understanding of the transaction and its implications, offering insights valuable to legal professionals, policymakers and scholars in corporate law, taxation and business ethics.

Public reason and constitutional adjudication in India

Taking India as my vantage point, I analyse Professor Wojciech Sadurski’s latest book, Constitutional Public Reason. The book comes at an interesting time for India. Comparative constitutional law scholarship has shifted focus from the Indian Supreme Court’s Public Interest Litigation movement to take a closer look at the Court’s deferential approaches to adjudicating fundamental rights. Simultaneously, the question of which standard of review to apply continues to be a contentious issue in constitutional cases before the Supreme Court. Even though India gets limited coverage in Sadurki’s new book, the book can be helpful in critiquing the deferential jurisprudence of the Indian Supreme Court and in exploring possible solutions. This review demonstrates the applicability of Sadurski’s insights by focusing on two strands of the book’s core argument: motive-based judicial review and standards of scrutiny in the context of the right to equality.

Born to be Authors

This article analyses the role of the child as an author and creative individual, according to the paradigm of Maria Montessori, to expand the question of whether the law provides a sufficient and just safeguard to this category of copyright authors. Montessori’s exploration of the creative freedom of children shows how irresistibly strong and indomitable their creativity is in the early years. This article submits that the early years are a most significant phase when children, in their exercise of creative authorship, are able to express the utmost freedom and originality. Accordingly, a scholarship of copyright law “of” the child and, significantly, authorship “by” the child should be at the core of a just and balanced legal system that brings together the rights and safeguards embedded within international rules and the copyright framework. Keywords: children; creativity; copyright; education; United Nations Convention on the Rights of the Child; Montessori; ingenuity; expression; originality; creative choices.

Why Do States Adhere to the Sustainable Development Goals?

AbstractThe rationale behind state support for, and obedience to, normative rules and obligations has long been a topic of international law scholarship discourse. What has yet to be fully established, however, is why virtually all states have agreed to adhere to a seemingly novel global paradigm with ambitious yet non-binding objectives – the United Nations 2030 Sustainable Development Goals (SDGs). This article identifies six factors as contributing to the influencing power of the SDGs – namely, the role of law, particularly inter- and transnational law, the legitimacy of the framework, the notion of reciprocity, reputational concerns, national self-interest, and the moral duty to address the shared global challenges of sustainable development.By exploring their strengths and limitations through several theoretical frameworks (including Harold Koh's theory of transnational legal processes, Thomas Franck's theory of legitimacy, and Ryan Goodman and Derek Jinks’ three mechanisms of social influence), this article argues that the combination of these factors motivates voluntary state commitment, reporting, and cooperation under the SDG framework and that, overall, the SDGs offer a versatile lens to explore the different motives for state adherence to a soft law framework in the inter- and transnational legal spheres.

Developing China's Hydrogen Economy: National Regulation Through Local Experimentation

AbstractHydrogen is playing an increasingly important role in China's energy and climate policy, with significant implications for the development of a global hydrogen industry. However, China's approach to the regulation of hydrogen, and, in particular, the role of local authorities in promoting hydrogen refuelling stations and fuel cell vehicles, has so far received limited scholarly attention. This article aims to contribute to the literature on hydrogen regulation and to the transnational environmental law scholarship on decentralization by examining how China promotes hydrogen at the national and local levels. The case of China shows how, in jurisdictions with a sufficient degree of decentralization, local initiatives can play a key role in driving the development of hydrogen. By testing different approaches to hydrogen regulation, local experimentation helps to manage the uncertainties associated with this new energy source. At the same time, China's experience confirms the ‘environmental federalism’ theory on the importance of regulatory harmonization to reduce transaction costs and local protectionism. As the Chinese government develops its national regulatory approach on hydrogen, it has the opportunity to take into account both local and international experience and engage with other major economies in an effort to promote an internationally harmonized regulatory landscape.