skip to content
Thursday, 9 April 2020

Cambridge Faculty of Law Legal Studies Research Paper SeriesThe Faculty has published Volume 11 Number 3 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Matthew H. Kramer: On the Properties of Quietism and Robustness (7/2020)

This paper will appear under the rubric of “Quietism” in the OXFORD HANDBOOK OF MORAL REALISM, yet the term “quietism” is rejected by nearly every moral philosopher to whose work it is applied. In the first half of this paper, after a terse introductory section, I expand on why the term “quietism” is so objectionable. In lieu of that term, the phrase “moral realism as a moral doctrine” is the best designation for the moral-realist theory which I have expounded in some of my previous writings. (Other designations that are acceptable alternatives to “quietism” – and to the equally pejorative phrase “relaxed realism” – are “non-inflationary moral realism” and “minimalist moral realism.”) As is argued in the first half of the paper, quietism is a chimerical property insofar as it is predicated of moral realism as a moral doctrine.

Thereafter, the focus shifts to the property of robustness.

Supposedly what separates moral realism as a moral doctrine from some other varieties of non-naturalistic moral realism is that the latter are robust. Such is the contention of numerous opponents of moral realism as a moral doctrine. However, when the property of robustness is invoked to distinguish between moral realism as a moral doctrine and other non-naturalistic varieties of moral realism – rather than to advert to something which they have in common – it turns out to be illusive. As is argued in the second half of this paper, every dimension of objectivity ascribed to morality by robust non-naturalistic realists is also ascribed to morality by proponents of moral realism as a moral doctrine. Hence, philosophers err both when they affirm that moral realism as a moral doctrine is a species of quietism and when they deny that moral realism as a moral doctrine is robust.

Henning Grosse Ruse-Khan: Automated Copyright Enforcement Online: From Blocking to Monetization of User-Generated Content (8/2020)

Global platforms such as YouTube, Facebook, Instagram or TikTok live on users ‘freely’ sharing content, in exchange for the data generated in the process. Many of these digital market actors nowadays employ automated copyright enforcement tools, allowing those who claim ownership to identify matching content uploaded by users. While most debates on state-sanctioned platform liability and automated private ordering by platforms has focused on the implications of user generated content being blocked, this paper places a spotlight on monetization. Using YouTube’s Content ID as principal example, I show how monetizing user content is by far the norm, and blocking the rare exception. This is not surprising, since both platforms and copyright owners significantly profit from monetization. However, contrasting complex automated enforcement tools such as Content ID against basic principles of copyright law, this paper shows how users loose out when their content is exploited. As aggravating factors, the paper points to far-reaching powers that platforms as ‘functional sovereigns’ wield within their respective domains; and to the fundamentally distinct nature of norms set by these sovereigns. The platform’s application and enforcement of its own rules is hard-coded, immediate and automated: embedded in its infrastructure and code, implemented through automation, and adjudicated in its own courts, platform rules constitute brute facts, directly shaping our reality – hence transforming the nature of law as institutional (that is, socially constructed) facts. The paper concludes by critically reviewing mechanisms to protect users, including those set out in Article 17 of the EU’s Digital Single Market Directive.

Brian R. Cheffins: Stop Blaming Milton Friedman! (9/2020)

A 1970 New York Times essay on corporate social responsibility by Milton Friedman is often said to have launched a shareholder-focused reorientation of managerial priorities in America’s public companies. The essay correspondingly is a primary target of those critical of a shareholder-centric approach to corporate governance. This paper argues that it is erroneous to blame (or credit) Milton Friedman for the rise of shareholder primacy in corporate America. In order for Friedman’s views to be as influential as has been assumed, his essay should have constituted a fundamental break from prevailing thinking that changed minds with some alacrity. In fact, what Friedman said was largely familiar to readers in 1970 and his essay did little to change managerial priorities at that point in time. The shareholder-first mentality that would come to dominate in corporate America would only take hold in the mid-1980s. This occurred due to an unprecedented wave of hostile takeovers rather than anything Friedman said and was sustained by a dramatic shift in favor of incentive-laden executive pay. Correspondingly, the time has come to stop blaming him for America’s shareholder-oriented capitalism.


Interested readers can browse the Working Paper Series at SSRN, or sign up to subscribe to distributions of the the e-journal.