Misclassification of employees as independent contractors is widespread. This article aims to make two contributions. My first goal is to sharpen the explanation of why misclassifications persist; I argue that three well‐known problems – the indeterminacy of employee status tests, the barriers to self‐enforcement, and the inequality of bargaining power – together combine to give employers de facto power to set the default legal status. Putting the burden on the worker to initiate legal proceedings and challenge their classification as an independent contractor is the ultimate reason for persistent misclassifications. The second and main contribution is to propose a solution that relies on new AI capabilities. Thanks to technological advancements it is now possible to require employers to seek pre‐authorisation before engaging with someone as an independent contractor. The authorisation would be granted (or refused) by a state‐run automated system, based on an AI prediction about the law. Both parties would still be able to bring the case before a court of law; but the power to set the default legal status would be taken away from employers. The article considers the difficulties with relying on AI predictions, and argues that those difficulties can be addressed, proposing a model that can be justified.
{"title":"Using AI to Mitigate the Employee Misclassification Problem","authors":"Guy Davidov","doi":"10.1111/1468-2230.12919","DOIUrl":"https://doi.org/10.1111/1468-2230.12919","url":null,"abstract":"Misclassification of employees as independent contractors is widespread. This article aims to make two contributions. My first goal is to sharpen the explanation of why misclassifications persist; I argue that three well‐known problems – the indeterminacy of employee status tests, the barriers to self‐enforcement, and the inequality of bargaining power – together combine to give employers <jats:italic>de facto</jats:italic> power to set the default legal status. Putting the burden on the worker to initiate legal proceedings and challenge their classification as an independent contractor is the ultimate reason for persistent misclassifications. The second and main contribution is to propose a solution that relies on new AI capabilities. Thanks to technological advancements it is now possible to require employers to seek pre‐authorisation before engaging with someone as an independent contractor. The authorisation would be granted (or refused) by a state‐run automated system, based on an AI prediction about the law. Both parties would still be able to bring the case before a court of law; but the power to set the default legal status would be taken away from employers. The article considers the difficulties with relying on AI predictions, and argues that those difficulties can be addressed, proposing a model that can be justified.","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2024-09-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142259003","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"StinePiilgaardPorner Nielsen and OleHammerslev (eds), Transformations of European Welfare States and Social Rights: Regulation, Professionals, and Citizens, Cham: Palgrave Macmillan, 2024, x + 226, pb £34.99 and open access","authors":"Naomi Creutzfeldt","doi":"10.1111/1468-2230.12920","DOIUrl":"https://doi.org/10.1111/1468-2230.12920","url":null,"abstract":"","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2024-09-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142259001","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Performative law is law ‘just for show’. Where the law expresses a commitment to targets, objectives and aspirations which are, in a strict sense, legally binding, but which are ultimately hard to formally enforce, it can take on a highly symbolic or gestural appearance. Environmental law is particularly vulnerable to performativity. This is because of the nature of the environment as an object of law and because of the features found in much modern environmental legislation. This article shows this by considering examples from the Environment Act 2021, one of the foundational legislative environmental instruments adopted in recent years. Despite its potential, this article argues that key parts of the Act display a highly performative nature. The article shows that whilst this performativity is a feature of design rather than accident in the Act itself, it is a characteristic which is often found in environmental law more generally even though performativity need not necessarily be a bad thing.
{"title":"Performative Environmental Law","authors":"Emma Lees, Ole W. Pedersen","doi":"10.1111/1468-2230.12918","DOIUrl":"https://doi.org/10.1111/1468-2230.12918","url":null,"abstract":"Performative law is law ‘just for show’. Where the law expresses a commitment to targets, objectives and aspirations which are, in a strict sense, legally binding, but which are ultimately hard to formally enforce, it can take on a highly symbolic or gestural appearance. Environmental law is particularly vulnerable to performativity. This is because of the nature of the environment as an object of law and because of the features found in much modern environmental legislation. This article shows this by considering examples from the Environment Act 2021, one of the foundational legislative environmental instruments adopted in recent years. Despite its potential, this article argues that key parts of the Act display a highly performative nature. The article shows that whilst this performativity is a feature of design rather than accident in the Act itself, it is a characteristic which is often found in environmental law more generally even though performativity need not necessarily be a bad thing.","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2024-09-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142222048","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In R (on the application of Imam) v London Borough of Croydon, the Supreme Court considered the relevance of a local authority's resources on the curial discretion as to remedy in judicial review. This question was addressed in the context of a breach of the authority's duty under section 193(2) of the Housing Act 1996 to secure suitable accommodation for a person with priority need who is not intentionally homeless. Not only is the case a rare example of the Supreme Court examining remedial discretion and mandatory orders at length, but it also signals the importance of legal reasoning about remedy in judicial review. Remedies form the space where courts often determine what effect, if any, unlawfulness may have. This case note presents an analysis of the Supreme Court's reasoning, drawing attention to its implications for certain received views concerning the legal effect of mandatory and quashing orders, and the pragmatic character of its analysis of the relevance of resources.
{"title":"Thinking Legally about Remedy in Judicial Review: R (on the application of Imam) v London Borough of Croydon","authors":"Lia Lawton","doi":"10.1111/1468-2230.12917","DOIUrl":"https://doi.org/10.1111/1468-2230.12917","url":null,"abstract":"In <jats:italic>R (on the application of Imam)</jats:italic> v <jats:italic>London Borough of Croydon</jats:italic>, the Supreme Court considered the relevance of a local authority's resources on the curial discretion as to remedy in judicial review. This question was addressed in the context of a breach of the authority's duty under section 193(2) of the Housing Act 1996 to secure suitable accommodation for a person with priority need who is not intentionally homeless. Not only is the case a rare example of the Supreme Court examining remedial discretion and mandatory orders at length, but it also signals the importance of legal reasoning about remedy in judicial review. Remedies form the space where courts often determine what effect, if any, unlawfulness may have. This case note presents an analysis of the Supreme Court's reasoning, drawing attention to its implications for certain received views concerning the legal effect of mandatory and quashing orders, and the pragmatic character of its analysis of the relevance of resources.","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2024-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142222051","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
There are reproductive technologies on the horizon that challenge the fundamentals of human reproduction – the need for sperm, eggs, and someone to gestate the pregnancy. We argue that such technologies collectively undermine our conception of reproductive biosex as we know it. In this article, we (re)examine the attribution and determination of legal parenthood in assisted reproduction in light of such developments. The literature on these emerging reproductive technologies and practices has focused on ethical questions around their permissibility, and regulatory questions regarding access to such technologies. Consequently, there has been limited consideration of how these technologies and practices will challenge the framework that determines legal parenthood in assisted reproduction. We argue that the current legal framework is premised on a number of cis‐heteronormative assumptions about the idealised nuclear family and reproductive biosex. We illustrate three conceptual challenges to the law from the shifting nature of human reproduction: (1) the potential for reproductive biosexed roles to be deconstructed; (2) the potential for relatedness to be reimagined; and (3) the possibilities of disembodied reproduction. These challenges illustrate that we must revisit the foundations of the legal framework attributing legal parenthood in assisted reproduction: its purpose, its functions, and its basis.
{"title":"Legal Parenthood, Novel Reproductive Practices, and the Disruption of Reproductive Biosex","authors":"Elizabeth Chloe Romanis, Alan Brown","doi":"10.1111/1468-2230.12914","DOIUrl":"https://doi.org/10.1111/1468-2230.12914","url":null,"abstract":"There are reproductive technologies on the horizon that challenge the fundamentals of human reproduction – the need for sperm, eggs, and someone to gestate the pregnancy. We argue that such technologies collectively undermine our conception of reproductive biosex as we know it. In this article, we (re)examine the attribution and determination of legal parenthood in assisted reproduction in light of such developments. The literature on these emerging reproductive technologies and practices has focused on ethical questions around their permissibility, and regulatory questions regarding access to such technologies. Consequently, there has been limited consideration of how these technologies and practices will challenge the framework that determines legal parenthood in assisted reproduction. We argue that the current legal framework is premised on a number of cis‐heteronormative assumptions about the idealised nuclear family and reproductive biosex. We illustrate three conceptual challenges to the law from the shifting nature of human reproduction: (1) the potential for reproductive biosexed roles to be deconstructed; (2) the potential for relatedness to be reimagined; and (3) the possibilities of disembodied reproduction. These challenges illustrate that we must revisit the foundations of the legal framework attributing legal parenthood in assisted reproduction: its purpose, its functions, and its basis.","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2024-08-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142222049","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The external assessment of the research activities of universities in the United Kingdom began in 1986. In 1992, for the first time, the Research Assessment Exercise (RAE) required institutions to submit books, articles and other ‘outputs’ for peer assessment and ultimately ranking. This exercise was followed by others in 1996, 2001 and 2008, and then by a revised approach, the Research Evaluation Framework (REF), in 2014 and 2021. We have conducted a long‐term longitudinal study of the ‘outputs’ submitted across these exercises for review by the law panels. By analysing these 30,028 outputs, and by using various methods of ranking journals and publishers, we are able to provide insights into the beliefs and prejudices of institutions and individual researchers regarding the publication of legal research over a 30‐year period.
{"title":"Thirty Years of Legal Research: An Empirical Analysis of Outputs Submitted to RAE and REF (1990‐2021)","authors":"Phillip Johnson, Johanna Gibson","doi":"10.1111/1468-2230.12913","DOIUrl":"https://doi.org/10.1111/1468-2230.12913","url":null,"abstract":"The external assessment of the research activities of universities in the United Kingdom began in 1986. In 1992, for the first time, the Research Assessment Exercise (RAE) required institutions to submit books, articles and other ‘outputs’ for peer assessment and ultimately ranking. This exercise was followed by others in 1996, 2001 and 2008, and then by a revised approach, the Research Evaluation Framework (REF), in 2014 and 2021. We have conducted a long‐term longitudinal study of the ‘outputs’ submitted across these exercises for review by the law panels. By analysing these 30,028 outputs, and by using various methods of ranking journals and publishers, we are able to provide insights into the beliefs and prejudices of institutions and individual researchers regarding the publication of legal research over a 30‐year period.","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2024-08-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142222050","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"MihneaTănăsescu, Understanding the Rights of Nature: A Critical Introduction, Bielefeld: transcript Verlag, 2022, 165 pp, pb, €40.00.","authors":"Roger Cotterrell","doi":"10.1111/1468-2230.12910","DOIUrl":"https://doi.org/10.1111/1468-2230.12910","url":null,"abstract":"","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2024-07-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141573948","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The increasing use of Artificial Intelligence (AI) technologies in inventive processes raises numerous patent law issues, including whether AI can be an inventor under law and who owns the AI‐generated inventions. The UK Supreme Court decision in Thaler v Comptroller of Patents, Designs and Trademarks has provided an ultimate answer to this question: AI cannot be an inventor for the purposes of patent law. This note argues, first, that while such a human‐centric approach to inventorship might discourage the use and development of AI technologies with autonomous invention capabilities, it will help retain an active human involvement in technologically supported inventive processes and continuously foster human ingenuity. Second, despite the Court focusing on what patent law is and not on what the law should be, the decision will be influential in the ongoing discussions on the future of patent law and will make it more difficult to expand patent law to incorporate non‐human inventors. Third, the decision has opened, or revealed, the gaps in patent law that the emergence of AI technologies have created and for which new legal solutions will be needed, especially with relation to the ownership of AI‐assisted inventions and the validation of inventorship claims.
人工智能 (AI) 技术在发明过程中的使用日益增多，这引发了许多专利法问题，包括人工智能是否可以成为法律规定的发明人，以及谁拥有人工智能产生的发明。英国最高法院在 Thaler v Comptroller of Patents, Designs and Trademarks 一案中的判决为这一问题提供了最终答案：就专利法而言，人工智能不能成为发明者。本说明认为，首先，虽然这种以人为中心的发明权方法可能会阻碍具有自主发明能力的人工智能技术的使用和发展，但它有助于保留人类对技术支持的发明过程的积极参与，并不断培养人类的创造力。其次，尽管法院关注的是专利法是什么，而不是法律应该是什么，但该判决将对正在进行的关于专利法未来的讨论产生影响，并将使专利法更难扩展到纳入非人类发明人。第三，该判决打开或揭示了人工智能技术的出现在专利法中造成的空白，为此需要新的法律解决方案，特别是在人工智能辅助发明的所有权和发明权要求的验证方面。
{"title":"‘AI is not an Inventor’: Thaler v Comptroller of Patents, Designs and Trademarks and the Patentability of AI Inventions","authors":"Rita Matulionyte","doi":"10.1111/1468-2230.12907","DOIUrl":"https://doi.org/10.1111/1468-2230.12907","url":null,"abstract":"The increasing use of Artificial Intelligence (AI) technologies in inventive processes raises numerous patent law issues, including whether AI can be an inventor under law and who owns the AI‐generated inventions. The UK Supreme Court decision in <jats:italic>Thaler</jats:italic> v <jats:italic>Comptroller of Patents, Designs and Trademarks</jats:italic> has provided an ultimate answer to this question: AI cannot be an inventor for the purposes of patent law. This note argues, first, that while such a human‐centric approach to inventorship might discourage the use and development of AI technologies with autonomous invention capabilities, it will help retain an active human involvement in technologically supported inventive processes and continuously foster human ingenuity. Second, despite the Court focusing on what patent law <jats:italic>is</jats:italic> and not on what the law <jats:italic>should be</jats:italic>, the decision will be influential in the ongoing discussions on the future of patent law and will make it more difficult to expand patent law to incorporate non‐human inventors. Third, the decision has opened, or revealed, the gaps in patent law that the emergence of AI technologies have created and for which new legal solutions will be needed, especially with relation to the ownership of AI‐assisted inventions and the validation of inventorship claims.","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2024-07-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141573949","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"MatthewFlinders and ChrisMonaghan (eds), Questions of Accountability: Prerogatives, Power and Politics, Oxford, Hart Publishing, 2023, 344 pp, hb, £81.00","authors":"C. R. G. Murray","doi":"10.1111/1468-2230.12911","DOIUrl":"https://doi.org/10.1111/1468-2230.12911","url":null,"abstract":"","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2024-07-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141548204","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：