Law and Risk

The word ‘risk’ is now everywhere. Whether one considers media reports, regulatory decisions or commercial transactions, there is inevitably mention of some form of risk: climate risk, credit risk, health risk, security risk, risks of migration. Such references are accompanied by actions taken by agents in different professional and governing capacities: risk assessment, risk communication, risk management, mitigation of risk. This is especially true for the European regulatory space, where ‘risk’ is ubiquitous. The governance of danger, however, is surely not a recent development. What, then, has changed? It is time to take a step back, explore the concept of risk and how it may be governed.

Given recent concerns brought about by COVID-19, the effective handling of risk has brought about an additional concern – could emergency powers be invoked to regulate risk while diluting democracy and the Rule of Law in the process?

The governance of risk balances a fundamental tension between the danger of the unknown on one hand, and the ability to anticipate and control the unknown on the other. Institutionalising the anticipation and control of the unknown requires hard theoretical, political and technical choices. This module concentrates on how law shapes and responds to the prevalence of risk in private and public decisions. Given the array of legal tools to deal with risk, the module will cover conventional approaches such as command-and-control regulation as well as more recent approaches derived from Behavioural Law & Economics. This module will engage with some central themes of risk regulation, and allow the participants to analyse aspects of risk in their chosen areas of inquiry such as economic law, environmental law and health law.

Learning Outcomes:

On successful completion of this module, students should be able to:

• Have a grasp on the legal principles that guide risk regulation, such as the precautionary principle and the proportionality principle
• Approach legal principles from perspectives found in other disciplines. In the bargain, students would appreciate the distinction between normative questions and empirical questions
• Pursue a practical interest in institutional engagement with risk and/or theoretical inquiry in the relationship between law and risk.

Assessment:

• Review (30%)Choice between a book review, a response to an article or a case note of around 2500 words (30%). The subject could be a legal or non-legal text. If it is a non-legal text, students would be expected to analyse the subject using legal concepts and tools. Students may also review fiction, but then the review must tease out what the author is trying to say (or has the luxury to avoid saying) about a non-fiction world.
  If you like a book that's not there in the library, then I can try and convince the library to get it. I would recommend students to purchase the subject of review. If you intimately read a work, it is good to have this item in your collection.
  It is suggested that the first draft be submitted around the middle of the term. The date for submission of final draft will be specified during the term. You must use the standard law school assignment cover sheet with its anti-plagiarism declaration for the final submission.

• Essay (70%)
  Proposal for Essay: Students must submit a proposal of their interests about a potential subject for their essay (10%). This needs to be submitted by the end of the Reading Week. This will be distributed to a specific student serving as a Discussant for the presentation.  I have nothing against the essay having an empirical component, with three caveats: (1) I am not an expert in advanced statistics; (2) empirical research takes time and resources; and (3) you would need to secure an ethics approval from the College before conducting empirical work, and this takes time. Should you have conducted empirical work (or are conducting empirical work for your Masters thesis), or are particularly interested in a particular line of empirical inquiry, I would recommend concentrating on how such empirical work could be used for legal decisions or policy recommendations in this module.
  Oral/Online Presentation of preliminary draft of Essay: Presentation of a preliminary draft of essay + Discussion of a proposal by another student in class (10%) will take place after the reading week, to allow enough time for revision before submission of Final Essay. Depending on the choice of topics, I will seek to pair students on similar themes. The presentations begin one week after the Reading Week.
  Final Essay: Final Essays of around 3,500 words should be submitted individually (50%). The date for submissions will be specified during term.

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