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Edinburgh Law School Legal Studies Research Paper Series - February 2021

Wed 3 March 2021

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The latest in the Legal Studies Research Paper Series (Vol. 9, No. 2: Feb 24, 2021) from Edinburgh Law School is now available.

View the full Edinburgh Law School Legal Studies Research Paper Series on SSRN

From Journalistic Ethics To Fact-Checking Practices: Defining The Standards Of Content Governance In The Fight Against Disinformation

Paola Cavaliere, Edinburgh Law School

Abstract: This article claims that the practices undertaken by digital platforms to counter disinformation, under the EU Action Plan against Disinformation and the Code of Practice, mark a shift in the governance of news media content. While professional journalism standards have been used for long, both within and outside the industry, to assess the accuracy of news content and adjudicate on media conduct, the platforms are now resolving to different fact-checking routines to moderate and curate their content.
The article will demonstrate how fact-checking organisations have different working methods than news operators and ultimately understand and assess ‘accuracy’ in different ways. As a result, this new and enhanced role for platforms and fact-checkers as curators of content impacts on how content is distributed to the audience and, thus, on media freedom. Depending on how the fact-checking standards and working routines will consolidate in the near future, however, this trend offers an actual opportunity to improve the quality of news and the right to receive information.

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Resolving The Sustainable Finance Conundrum: Activist Policies And Financial Technology

Emilios Avgouleas, Edinburgh Law School

Abstract: The outbreak of the COVID-19 pandemic and its devastating impact on public health and social and economic systems has induced citizens, central banks, and governments to rethink sustainable finance. Still, climate change is not the only challenge human societies face today. Racial, gender, and income inequality and the fate of liberal democracy are as important and should feature prominently in public debate and policy-makers’ agendas. Achieving these policy objectives as encapsulated in the United Nations (UN) Sustainability Development Goals (SDGs), requires substantial investment. The growing field of sustainable finance has sought to provide that funding, but the current funding gap remains enormous. The funding gap is the product of three formidable obstacles: (a) legal restrictions, (b) lack of a reliable mechanism for the monitoring and verification of the actual sustainability impact of green investments and policies, and (c) finance models that narrowly measure investment risk and return. These obstacles act like a dam with regards to sustainable finance flows and the dam may only be breached if public policy takes a stronger role in actively encouraging sustainable investment through tax and regulatory incentives. To implement that policy an accord among G-20 countries, from which most private investment flows originate, is required. A tax that would treat capital flows that do not have a direct or indirect sustainability impact, for example, investments in the carbon fuel industry, as a negative externality would constitute a radical departure from the more benign policies tried so far such as reporting/disclosure and pricing of carbon emissions. To be effective it would require international consensus. While calls for a similar levy were also raised in the aftermath of the Global Financial Crisis and went nowhere, the result of the recent US election in combination with the devastating impact of the pandemic may prove the watershed moment. Moreover, cutting-edge financial technology encompassing artificial intelligence, machine learning and blockchain technology can be critical in terms of boosting sustainable finance and creating a scientifically accurate environment for the allocation of the proposed here green taxes and subsidies among investment portfolios. With the advent of autonomous finance gathering momentum there has never been a better time for such a shift in the mechanics of investing.

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Export Credit Agencies: Fossil Fuel Exclusion Policies, Paris Alignment, and Role as Transformational Actors

Navraj Singh Ghaleigh, Edinburgh Law School

Abstract: The decision of HMG to cease UKEF support for the fossil fuel energy sector is a signal achievement in global climate finance. It demonstrates the ambition of the UK – post-Brexit, and post-pandemic – to lead international on climate action. In order to deliver on that ambition important practical issues require consideration. First, how can the decision be implemented such as to maximise its credibility and impact, both domestically and internationally? A central issue to implementation is the imperative to avoid the regulatory displacement of finance from UKEF to other UK public finance entities, such as CDC group and PIDG. More ambitiously, if the UK and other similarly situated jurisdictions are to genuinely become a Paris aligned low carbon economy and society, there is a need to understand the role that GGR (greenhouse gas removal technologies) have to play in the process. A complex matter involving climate finance, but also moral hazard and innovation policy, GGR will be a central plank to going beyond ‘do no harm’ and delivering transformation.

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Sex and Gender Equality Law and Policy: a response to Murray, Hunter Blackburn and Mackenzie

Sharon Cowan, Edinburgh Law School
Harry Josephine Giles
Rebecca Hewer, University of Edinburgh
Becky Kaufmann
Meryl Kenny, University of Edinburgh
Sean Morris
Katie Nicoll Baines, University of Edinburgh

Abstract: This article is a response to ‘Losing Sight of Women’s Rights: The Unregulated Introduction of Gender Self-Identification as a Case Study of Policy Capture in Scotland’ by Kath Murray, Lucy Hunter Blackburn and Lisa Mackenzie, published in Scottish Affairs 28(3). Murray et al sought to explore the legal status of women, particularly with regard to discrimination legislation, and concluded that the interests of trans women had begun to systematically erode the interests of non-trans women in Scotland. In this response, we aim to correct some of the erroneous statements made by Murray et al about legal definitions of sex and gender, and about discrimination law. In critically engaging with Murray et al’s argument we aim to build a much-needed clearer understanding of law and policy on sex and gender in Scotland, particularly as it relates to the application of the Equality Act 2010. We argue that, in that claiming that there has been policy capture in Scotland, Murray et al have neglected to contextualise ongoing debates about sex and gender in law against the backdrop of over two decades of clear legal and policy shifts across the UK. We call for researchers and others – in Scotland and elsewhere – to take care, particularly in interpreting and applying the law, especially as it applies to marginalised minority populations, so that we do not further obfuscate or mislead on important legal and social issues.

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