Fake news is a symptom of deeper structural problems in our societies and media environments. To counter it, policymakers need to take into account the underlying, self-reinforcing mechanisms that make this old phenomenon so pervasive today. Only by taking a step back can we examine the vulnerabilities these fake news narratives exploit. This article provides a first taxonomy of anti-fake news approaches. It argues that proposed anti-fake news laws focus on the trees rather than the forest. As such, they will not only remain irrelevant but also aggravate the root causes fuelling the fake news phenomenon.

Although judicial decisions in tort law primarily determine the (correlative) responsibilities and liabilities of the proceeding parties, they also have regulatory effects on non-litigants. In this contribution, these regulatory consequences of tort law will be analysed in light of a court’s quest when it decides a tort claim involving (uncertain) risks. It will be argued that decisions in tort law about uncertain risks involve the possible occurrence of a false positive (eg accepting liability for a non-existing risk) and a false negative (eg denying liability for a real risk). False positives and false negatives have adverse consequences for the parties to the proceedings but, bearing in mind the regulatory effects of tort adjudication, potentially also for non-litigants. While courts might want to avoid both, scientific uncertainties and complexities make it difficult for them to assess to what extent there is a chance of either a false positive or a false negative occurring. Therefore, they necessarily need to determine which party bears the risk of the involved errors. In addition, the question arises whether courts should also take the potential regulatory consequences of their rulings into account and, if yes, how? To that purpose, they can employ a bipolar reasoning style and a multipolar reasoning style. Although tort law is about determining the applicable rights and obligations between the plaintiff and defendant (bipolar reasoning), in light of the regulatory implications of tort law and developments in several tort systems, the relevance of considerations transcending this bipolar relationship (multipolar reasoning) is increasing. However, the possibilities for courts to engage in multipolar reasoning are restrained by the bipolar nature of tort law which gives rise to information and specialism deficits. This will be illustrated by referring to issues in relation to setting the standard of care and examining causation.

Tort cases apply particular standards of behaviour to defendants and society, often using common-sense sounding benchmarks such as “reasonableness”. This article explores the ways in which courts establish facts, for the purpose of making a decision on appropriate standards of behaviour, by using sources of authority from the world beyond tort. Facts, rather than being separate from and prior to the application of the legal norms, are often inseparably bound with legal judgment in any particular decision. Two areas of tort law are assessed: some of the English asbestos cases, and the Dutch Urgenda climate change case. The facts required for the setting of, and compliance with, the standard of negligence in these cases are found in a range of external sources, including standards, rules and understandings from scientific bodies, regulators, legal and non-legal documents.

Against the backdrop of contemporary climate change lawsuits, this article presents preliminary research findings regarding a remarkable and underappreciated moment in the common law pre-history of modern environmental, health, and safety regulation. The findings complicate the conventional academic story about the limited capabilities of tort law and its inevitable displacement by more institutionally robust and sophisticated forms of regulation. Section I offers a brief introduction, followed in Section II by a review of existing academic literature on the pros and cons of utilising tort law as a regulatory device. As will be seen, the consensus view seems to be that tort law is a clumsy and imperfect mechanism for addressing most environmental, health, and safety risks. Section III argues that the debate over tort law’s potential as a risk regulation mechanism ignores the distinctively private law history and character of that body of law, essentially asking tort to serve a purpose for which it was neither intended nor designed. Section IV then presents a case study of nuisance litigation in which the tort system achieves a remarkable and underappreciated risk regulation effect precisely by focusing narrowly on the traditional task of adjudicating alleged wrongs between private parties. Section V concludes.

Taking the Urgenda case on climate change liability as an example, this article researches the more general question into the legitimacy of risk regulation by civil courts. Which principles determine the legitimacy of a civil court’s participation, especially in the domain of societal risk regulation? The central claim is that these principles concern (amongst many other things) the position of the court, the tools of the court, and the attitude of the court. In other words, they have their source in constitutional law, civil (procedural) law, and professional ethics respectively. This claim is substantiated by an analysis of these principles, their interpretation, and the way they contribute to a normative/theoretical framework for the assessment of the legitimacy of judicial rulings.

This special issue provides several perspectives on the potential and limits of judicial risk regulation as a mechanism to redress actual and perceived regulatory failures. Central to this inquiry is the legitimacy of the court system to act as a risk regulator, specifically as compared to governmental actors. This article focuses on the question of institutional competency of juridical risk regulators from a law and economics (“L&E”) perspective. L&E scholarship will be used to help to understand the relative strengths and weaknesses of courts as risk regulators and helps us decide when courts may act as substitute risk regulators and when they are better positioned as complements.

The EU institutions and agencies have become increasingly involved in enforcing EU law directly vis-à-vis private actors. A number of such EU entities have also acquired the so-called emergency powers, which allow interference with the legal position of a private party. Given the lack of research in this area, the question that this article addresses is whether relevant safeguards have been introduced to ensure the rule of law in such situations to prevent the abuse of executive discretion by public authorities. What are the relevant safeguards in the emergency in the EU in the first place? Having analysed relevant EU legislation and case law, the article offers a complete overview of all the existing EU entities with the emergency powers and shows a great diversity in the extent to which the EU legislator has regulated procedural safeguards in relevant law. The article discusses what safeguards need to be ensured in an emergency and argues for clarity of legislative frameworks in this respect.

This commentary examines the recent Appellate Body Report in Russia – Pigs. This case is salient because it offers further clarification of the principle of regionalisation in the context of WTO law. By reading the different terms of Article 6 of the SPS Agreement in a holistic way, the Appellate Body has offered an interpretation of the legal text that arguably strengthens the principle.

Algorithmic and high frequency trading use computer algorithms to execute strategies and the confluence of trends in computer hardware, programming, mathematical modelling, and financial innovation have pushed the limits of trading speed to unprecedented levels. Algorithms are fast and automatically spread disruptions through the financial system. Over the last decade, the ensuing systemic risk called for new regulations. This article attempts an early assessment of the new European legal framework (Mifid 2 and Market Abuse Regime) intended to tackle the technological risks of the modern trading paradigm.