Judicial actions in the courtroom remain for the most part off the record and hard to discern. Moreover, judicial settlement practices in the United States, for example, can take place in judicial chambers, far from the public eye. Thus there is a need for physical presence of researchers in public hearings to understand what judges do today in the age of vanishing trials. Researchers of this study entered courts in London, Florence, and Tel-Aviv. The various judicial conflict resolution practices that emerged in Israel’s most active first-instance court, in Tel-Aviv, provide a new perspective on power in the courtroom, identifying new forms of legitimation and justice developed by judges as they perform their settlement-promoting roles. In addition, we discuss an alternative model, found in the Florence Court, where judges were only recently permitted to use settlement practices. There the judges are supported by interns who screen cases before trial to examine whether they may be appropriate for mediation. In court, judges may offer mediation to the parties and explain their reasoning for doing so but will usually not try to settle the cases themselves. Lastly, we showcase intervention styles that offer new visions for the judicial role.

While the role of judges has changed dramatically due to the vanishing trial phenomenon, the change has generally slipped under the radar. The extent and nature of the transformation of judicial roles usually cannot be deduced from reading legislation or official public legal records. This stands in stark contrast to the information age, in which a wealth of public information and a forthcoming attitude toward supplying additional information might be hoped for. In this chapter, we describe the transparency problem and our efforts to persuade courts to divulge information. Notable, this problem, which confronted us as researchers, is compounded in the case of individual litigants who have fewer means to surmount it. We describe the methodological approach that developed in the course of our research to surmount the data challenge. We show the strengths and weaknesses of each research method that we used and the way in which combined research methods have an added value, compensating for weaknesses and uncovering blind spots. By conducting court observations, coding actual court files, and analyzing them quantitatively, while interviewing judges and other legal actors, we were able to obtain a rich picture of the trajectory of cases as they move toward settlement.

In recent litigation, insurers have argued that state laws that mandate data reporting violate their insurance contracts. While not explicitly framed in freedom of contract terms, their argument reflects a recent trend in lower courts, which see freedom of contract principles as supporting ERISA preemption claims. These courts treat state regulations infringe on the insurers’ abilities to promulgate contracts of their choosing.

This Essay argues that a better approach to considering freedom of contract should consider whether the legislation at issue addresses bargaining imbalances that undermine fair contracting. That approach reflects arguments made in the context of ERISA litigation in the 1990s, where insurers claimed that state laws that required them to accept into their network any provider that met their terms and conditions were preempted by ERISA. States responded that such laws supported freedom of contract between patients and providers, and to correct market imbalances.

In the context of data reporting laws, similarly, access to data corrects market imbalances which undermine contracting between health plans, providers, and consumers. Accordingly, ongoing Biden Administration efforts to improve data transparency should be strengthened. These proposed regulations seek voluntary submission. However, voluntary submission presents a range of problems: mandated data collection is needed precisely to maintain robust contractual arrangements in the private market.

The fast-growing clinical research outsourcing over the course of the past decade has attracted the active involvement of private equity buyers to the “business” of Clinical Research Organizations (CROs). The fragmentation of pharmaceutical services through CROs offers an opportunity to lower the financial risk of drug development in a highly critical industry. Justified by the operational efficiency that integrating assets and services to decrease costs even further may represent, private equity has recently demonstrated an appetite for vertical integrations to expand the geographic, patient, and service reach of clinical research sites. Since private equity managers have the incentive to maximize financial returns, gaining greater access and control of patient identification, enrollment and retention, and quality protocols may pose significant equity-based risks to biopharmaceutical stakeholders, fundamentally, drug end users.

The proliferation of CROs and their plans to gain further operational control of clinical trials pose the potential tradeoff between drug development efficiency and equitable development and access to drugs and research knowledge. This reasonable concern is most present in the efficiency-based scholarship debate on shareholder and stakeholder governance of recent years. The discussion centers on whether new corporate leaders and investors might be paying too much attention to shareholder value while not enough to stakeholder value. A balance, the debate seems to suggest, is critical to generating long-term shareholder wealth, shifting the long-standing “shareholder value” corporate governance model toward an equity-based, “deliver value” type, commitment.

By observing the lay of the land of CROs in the United States and using as a theoretical framework the increasingly influential stakeholderism approach to corporate governance, this essay offers a critical view of the use of stakeholder factors in stewardship decisions made by CROs’ corporate leaders and private equity investors. Ultimately, it aims to identify key areas of organizational and governance concerns in medical research and the shortcomings they represent to equitable access to medical innovation.

After reviewing a wide range of topics, we conclude that good science requires greater efforts to manage biases and to promote the ethical conduct of research. An important problem is the belief that randomized controlled trials (RCTs) are exempt from systematic bias. Throughout the book, we acknowledge the importance of RCTs, but also emphasize that they are not immune from systematic bias. A second lesson concerns conflict of interest, which must always be taken seriously. Most large RCTs are sponsored by for-profit pharmaceutical companies. We identify leverage points to address these problems. These include cultivating equipoise – the position that research investigators enter a study with the understanding that either a positive, negative, or null result is of value. We return to several other themes prominent throughout this book, including the reporting of research findings and serious problems with our system of peer review. The book concludes with recommendations for reducing conflicts of interest, improving transparency, and reimagining the peer review system.

This chapter advocates a simple principle: Good analysis should be easier to publish than bad analysis. Multiverse methods promote transparency over asymmetric information and emphasize robustness, countering the fragility inherent in single-path analysis. In an era when the credibility of scientific results is often challenged, the use of multiverse analysis is crucial for bolstering both the credibility and persuasiveness of research findings.

There is no doubt that AI systems, and the large-scale processing of personal data that often accompanies their development and use, has put a strain on individuals’ fundamental rights and freedoms. Against that background, this chapter aims to walk the reader through a selection of key concerns arising from the application of the GDPR to the training and use of such systems. First, it clarifies the position and role of the GDPR within the broader European data protection regulatory framework. Next, it delineates its scope of application by delving into the pivotal notions of “personal data,” “controller,” and “processor.” Lastly, it highlights some friction points between the characteristics inherent to most AI systems and the general principles outlined in Article 5 GDPR, including lawfulness, transparency, purpose limitation, data minimization, and accountability.

This paper summarizes the United States’ legal framework governing Internet “platforms” that publish third-party content. It highlights three key features of U.S. law: the constitutional protections for free speech and press, the statutory immunity provided by 47 U.S.C. § 230 (“Section 230”), and the limits on state regulation of the Internet. It also discusses US efforts to impose mandatory transparency obligations on Internet “platforms.”

This book has investigated trilogues as the democratic secret of European legislation. To this end, it has proceeded in two steps. The first step has been analytical in nature, in that it has described and reconstructed the law and practice of European legislation through a close engagement with the relevant normative sources (Chapters 1–3). The second step has been partly doctrinal and partly theoretical (Chapters 4–6). It has been doctrinal, to the extent that it has sought to capture and give distinctive meaning to “informality,” as both a key concept of EU law and an essential feature of trilogues. It has been theoretical, to the extent that it has discussed, appraised, and legitimized trilogues in the light of theories of public authority and democracy beyond the nation state. In this second step, the line of reasoning has also benefitted from a comparative chapter, which has thrown into sharper relief the advantages of a legislative process based on trilogues.

The difference in the relative bargaining power of musicians and their corporate partners not only has consequences for the negotiation and formation phase of the contract, but also for its performance, consisting of the exploitation of protected content and the ensuing remuneration. Unfair situations may arise in both respects. This chapter analyses to what extent the legal framework intervenes – and should intervene. First, it reviews exploitation obligations, both in terms of the existence and scope of a duty to exploit and the possible limitations to the content of exploitation activities. Subsequently, the requirement of ‘fair’ remuneration, the available tools for ex post contract adjustment and legislative measures seeking to enhance transparency in the music value chain are scrutinised. The chapter then moves on the performance stage of contracts in secondary relationships, before making a case for a harmonised residual remuneration right for digital exploitation, and concluding.

Both corporate partners and musicians may have valid reasons for wanting to terminate a contract. Forcing them to uphold the contract curbs party agency. Relevant reasons may include the aim of avoiding undue investment in an artist who has proven to be commercially unviable, the wish to escape unfair situations in terms of rights transfer, or cases of (perceived) unfairness in terms of exploitation and/or remuneration. The excessive duration of a contract may in itself also give rise to problems. On a more general level, the exclusive nature of many music industry contracts sits uneasily with the vision of musicians as independent, creative actors. This chapter reviews how the selected substantive legal regimes affect parties’ possibility to terminate the contractual relationship. First, the chapter reviews potentially applicable limitations on contract duration, as well as grounds for termination on the basis of breach of contract. Taking a more practical view, the consequences of contract termination are then assessed in order to gauge whether these consequences may amount to switching costs that prevent the termination of contracts in practice.

In practice, there are several obstacles to the application of the substantive legal framework analysed in the previous chapters. First, there is a risk of contractual provisions that deviate from the legal norm. The qualification of certain rules as mandatory law may prevent such contractual deviation. Even so, effective recourse to the protective regimes throughout the course of the contract is not guaranteed. Reference may be made to the possibility for corporate partners to have recourse to trade secret protection and the apparent limited invocation of the protective legal framework. Collective enforcement may contribute to enhanced transparency throughout the music value chain and counter musicians’ fear of commercial retaliation. Further bolstering extra-judicial enforcement is likely to fulfil an important complementary role.

Chapter 4 is dedicated to the concept of informality as a crucial legal concept for the understanding of trilogues. It begins from a twofold observation. First, the informal nature of trilogues is stated in black and white in a significant variety of legal instruments. Secondly, the role of legal scholarship is to make sense of that unequivocal characterization. Drawing on institutional theory, this chapter argues that informality is a full-blown concept of EU law, and it sets about defining its characteristics. To that end, it compares trilogues with two other informal bodies, namely the Euro Group and the Informal Council meetings. The core idea of this chapter is that the codification of informality translates into legal terms the intention of the institutions to protect certain spaces from an excessive penetration of legal normativity. This intention, in turn, is indicative of the desire to preserve those spaces for the emergence of powerful social frameworks where genuine exchanges among actors may occur; exchanges that should be conducive to compromise.

This chapter brings together the research findings and answers the main research question, namely how the legal framework can contribute to a achieving a fair(er) balance between the interests of musicians and their main corporate partners. It summarises the potential bottom-up initiatives, as well as the possible regulatory action identified throughout the book.

This chapter first analyses the rights and interests of the primary stakeholders in the music industry and introduces the various contracts entered into between musicians and their corporate partners. It then discusses the music value chain that results from such contracts in the streaming age. Two separate subsections are dedicated to, respectively, the division of revenues and the ongoing quest towards enhanced transparency. A concluding ‘bridge’ brings together the most relevant findings that lead into the analysis of the relevant legal framework in the subsequent chapters.