Category Archives: Fundamental or Human Rights

Leufer and Hidvegi, ‘The Pitfalls of the European Union’s Risk-Based Approach to Digital Rulemaking’

ABSTRACT The European Union’s Artificial Intelligence Act takes a so-called risk-based approach to regulating artificial intelligence. In addition to being celebrated by industry, this risk-based approach is likely to spread due to the ‘Brussels Effect’ whereby EU legislation is taken as a model in other jurisdictions around the world. This article investigates how the AI […]

Douglas Kysar, ‘The Constitutional Claim to Individuation in Tort – A Tale of Two Centuries, Part 2’

ABSTRACT This article – drafted to honor Professor Aaron Twerski on the occasion of his festschrift at Brooklyn Law School – draws inspiration from his classic 1989 article on market share liability. In that article, Professor Twerski observed that doctrinal confusions in market share liability arose from judges who ‘had their feet firmly planted in […]

Thomas Ellis, ‘The Rise, Fall, and Resurrection of the Alien Tort Statute’

INTRODUCTION … This Comment explores the origin, purpose, reach, and Limitations of the ATS. The analysis begins with the Constitution and the original text of the ATS within Section 9 of the Judiciary Act of 1789, then moves to the application of the ATS in the modern world and concludes with how the ATS may […]

Kenneth Abraham, ‘Free Speech, Breathing Space, and Liability Insurance’

ABSTRACT In New York Times v Sullivan (1964), the Supreme Court began adopting First Amendment restrictions on liability for defamation and other speech torts (invasion of privacy and intentional infliction of emotional distress), so as to create ‘breathing space’ – additional protection against liability for speech that has no constitutional value in itself. The idea […]

Carsten Koenig, ‘An Economic Analysis of Supply Chain Liability’

ABSTRACT Legislators and regulators around the globe are increasingly seeking to hold multinational companies accountable for human rights and environmental abuses in their supply chains, even when the harm is primarily caused by a subsidiary or business partner. This paper examines such supply chain liability from an economic perspective. It argues that it can be […]

Farah, Kunuji and Kent, ‘Civil Liability Under Sustainability Due Diligence Legislation: A Quiet Revolution?’

INTRODUCTION Despite the growing recognition of human rights and environmental considerations in the context of corporate governance and responsibilities, the dismal performance of businesses in this area has continued to be a source of concern. A new wave of sustainability due diligence legislation – culminating with the legislation of the EU proposed Corporate Sustainability Due […]

Claudia Haupt, ‘The Horizontal Effect of Fundamental Rights’

ABSTRACT This chapter examines in comparative perspective the constitutional doctrine of horizontal effect as it relates to speech and data privacy on social media platforms. In the United States, the fundamental right to free speech is conceptualized as a negative right directed against the state. But whereas protecting private speech against government restrictions is the […]

David Snyder, ‘Contracts as an Instrument of International Management and Governance’

ABSTRACT This chapter provides a general legal overview of model contract clauses to bring environmental, social, and governance (ESG) values into contracts in international supply chains. It is the lead analytical chapter in the book Contracts for Responsible and Sustainable Supply Chains. The book contains actual model contract clauses as well as chapters providing extensive […]

Mateusz Grochowski, ‘Freedom of Speech, Consumer Protection and the Duty to Contract’

ABSTRACT Despite this plethora of accounts, certain aspects of the liaison between fundamental rights and private law are still a riddle. One such area is the relationship between consumer protection and freedom of expression. In an interesting turn of events, three high courts on either side of the Atlantic grappled with this problem almost in […]

Vidir Petersen, ‘Climate Change and the Social Function of Property – A Human Flourishing Reading of Article 1 of Protocol No 1 to the European Convention on Human Rights’

ABSTRACT There is tension between private property and climate change action. A lot of the planet’s land area is privately owned, but at the same time drastic measures are needed in the battle against climate change. This begs the question how far States can go in regulating climate change, without triggering the compensation requirement under […]