Top Tips for the Week of February 16
SSRN seems to have upgraded its security. Now how are bots going to download my scholarship? It will be interesting to see if the bots had favorite topics, giving boosts to particular scholarly niches or if they just downloaded everything, so that we all felt loved a little bit.
Steven L. Schwarcz
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Private ordering is the delegation of regulatory authority to the private sector. The United States and other governments often use private ordering in business and finance. The goal is to engage experts from the private sector who have greater expertise than typically available within a government agency. Domestically and worldwide, private ordering is most widely used for financial disclosure. To this end, governments commonly delegate to the accounting profession responsibility for recording and summarizing a firm’s business and financial transactions and analyzing, verifying, and reporting the results. Because investors in securities issued by firms rely on the disclosure, this represents the delegation of securities-law authority from government agencies, including the U.S. Securities and Exchange Commission (“SEC”), to the private sector. The legitimacy of this private ordering has been challenged, however, by questions whether financial statements of publicly-listed companies accurately reflect reality. Infamous accounting failures, including the collapses of Enron and Lehman Brothers, suggest that financial disclosure–and thus, the private ordering of such disclosure–may be flawed. Furthermore, the private-sector body acting for the accounting profession, the Financial Accounting Standards Board (FASB), has been criticized for its slow pace of promulgating important new accounting standards and a belief that conflicts of interest are preventing it from adequately addressing investor needs. This Article reexamines the private ordering of financial disclosure, including whether it continues to work effectively and, if not, how it can be improved. The analysis also takes a cross-border perspective, comparing U.S., U.K., and EU financial disclosure.
Johan David Michel and Christopher Millard
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In this paper, we explore whether English law can develop an in rem property right in digital files by analogy to the rules that govern things in possession. We argue that the law can recognise a control-based relative title to digital files, backed by a remedy for return or damages in case of third-party interference. Doing so can protect each person’s control of their digital files, which serve as containers of valuable personal and commercial information. Yet it would also impact third parties, who would become subject to a duty of non-interference with digital files and potential liability for damages under the torts of trespass and conversion. Nonetheless, English law can also apply existing rules on freedom of contract, vicarious possession, abandonment, and involuntary bailment to digital files by analogy. This can help the law achieve an appropriate balance between the competing interests in digital files.
Abiatha Adu Wiafe
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The COVID-19 pandemic constituted an unprecedented global disruption that exposed fundamental weaknesses in the legal doctrines governing commercial contracts. This thesis critically examines the adequacy of force majeure and frustration as mechanisms for allocating commercial risk during systemic crises, using the pandemic as a central empirical and doctrinal stress test. Focusing primarily on Ghana and the United Kingdom, and drawing comparative insights fromFrance, Germany, the United States, and international commercial arbitration, the study interrogates whether existing contract law frameworks are fit to manage large-scale, prolonged, and externally imposed disruptions. Adopting a doctrinal, comparative, and policy-oriented methodology, the thesis analyses judicial decisions, statutory provisions, and transnational soft-law instruments to assess how different legal systems responded to pandemic-induced non-performance. It demonstrates that traditional common law approaches—characterised by narrow interpretations of force majeure clauses and the restrictive doctrine of frustration—proved largely ill-suited to the realities of COVID-19. Bycontrast, civil law systems equipped with codified hardship doctrines and judicial powers of contractual adaptation exhibited greater flexibility and normative coherence. The thesis further reveals that contractual risk allocation is structurally fragile, particularly in mixed and developing legal systems such as Ghana, where institutional capacity constraints, limited access to justice, and underdeveloped statutory frameworks exacerbated commercial vulnerability. It argues that effective crisis governance cannot rely on party autonomy alone, but requires doctrinal recalibration, legislative intervention, judicial capacity building, improvedcontractual drafting, integration of alternative dispute resolution mechanisms, and greater engagement with international soft law. Ultimately, the thesis advances a normative framework for reimagining contract lawas a crisis-responsive system of risk governance, capable of reconciling legal certainty with fairness and economic resilience. It contributes original insights to contract law scholarship, comparative legal studies, and policy reform debates, while offering context-sensitive recommendations for Ghana, the UK, and similarly situated jurisdictions confronting an increasingly uncertain global commercial environment.