This chapter serves as the general introduction to the volume. It discusses two major impasses plaguing EMU in the 2020s: the first, a clash between politicization of EMU decisions, on the one hand, and an institutional structure designed to reject political conflict, on the other; the second, a scholarly impasse between those analysing EMU accountability comparatively and those doing so through EMU specific standards. The chapter briefly introduces the core concepts used in the volume as a means of overcoming this impasse: the distinction between procedural and substantive accountability as well as the normative goods framework developed in Chapter 1. It finally provides an overview of the structure and content of the volume, concluding with a plea to focus scholarly attention on EMUs substantive accountability deficits.

The euro crisis has brought about remarkable changes in the economic governance of the European Union (EU) and consequently in the ways the executives can be held to account. By focusing on the interactions between national parliament and government in Poland, the fifth-largest EU member state by population, this chapter discusses debates concerning the EU annual cycle of fiscal and economic surveillance - the European Semester, related in particular to its most important element – the Country Specific Recommendations (CSRs). The goal of this paper is to assess how parliamentary scrutiny affects the level of implementation of CSRs. The positions of Members of Parliament (MPs) towards CSRs and connected arguments expressed in parliamentary discussions are explained by applying an analytical framework of justification and contestation as two basic forms of accountability. On accountability dimension, most questions, which were asked by both majority and opposition MPs, fall within the justification category in which the demands for explanation or information from the representatives from two ministries responsible for finance and development were made. On the efficiency dimension, one can hardly see any link at all as the scrutiny of the CSRs has a limited impact on their implementation.

This chapter explores the accountability of the Banking Union in light of fundamental principles of European Union law. The allocation of supervisory powers to the SSM gives the ECB unprecedented discretionary powers. For instance, the ECB might have to balance the potentially conflicting policy objectives of financial stability and monetary policy or to apply broadly phrased criteria when deciding whether an institution needs to be resolved. On the basis of a fresh look at the democratic legitimacy of independent institutions, the chapter argues that these powers call for a high level of ECB accountability. The question is whether the current structure of the SSM meets this standard. While SSM decisions are subject to legal review, the courts need to respect the discretionary powers of the SSM. Parliamentary accountability via the Banking Dialogue, the focus of much recent research, does not fully make up for this shortcoming. Instead, intra-executive accountability, an underrated dimension of checks and balances, has considerable potential. This concerns in particular the relationship between the SSM and the Commission, and the SSM and the European Court of Auditors. The chapter suggests how one might further strengthen intra-executive accountability in the Banking Union at the EU level.

The European Banking Union (EBU) launched in 2012 relies on a complex institutional architecture; that is, a series of EU institutions and bodies as well as national institutions are involved in its functioning. At the EU level, these include the European Central Bank (ECB) – which acts as the authority in charge of monetary and as banking supervisor, two EU agencies (the Single Resolution Board and the European Banking Authority), as well as the European Commission. This chapter examines the existing accountability mechanisms vis-à-vis each of these institutions and bodies with a view to determining whether any accountability gaps exist. To this end, it first maps these mechanisms and analyses how they have been used to date. It finds that the mechanisms have been used indeed, but that some shortcomings exist in the existing institutional framework. It therefore proposes some reforms to improve the existing situation.

This chapter provides the volumes general conceptual framework. It begins by addressing why new approaches to accountability are needed, arguing that accountability literature has reached a stalemate as a result of an impasse between deductive and inductive approaches to accountability in the EU. It then argues that overcoming the stalemate requires developing a generalised framework of what accountability is for, deriving four accountability goods to be used in subsequent chapters. The chapter argues that each of the goods can be delivered in procedural or substantive ways, focusing either on the process by which decisions are made or the substantive worth of decisions themselves. The chapter concludes by discussing the strengths and weaknesses of both varieties of accountability before mapping out how the concepts will be applied across policy fields and institutions in subsequent chapters.

The transformation of the ECB powers in the past decade opened fundamental questions pertaining to the judicial review of monetary policy decisions and, more deeply, to the role of law in the government of money. Underlying those questions is the inadequacy of categories of public law we use to understand the power of administrative and executive institutions when acting in instances of uncertainty, technical complexity, and high political stakes. Against this background, this chapter characterizes the powers of the ECB as constitutive. It argues that this constitutive nature explains the difficulties of judicial review over monetary policy decisions, and, furthermore, that constitutive powers justify a shift in understanding the role of law in relation to the action of executive bodies. Law can and must operate in the absence (or irrespective) of judicial review, and support accountability outside of the courtroom. This last point will be demonstrated through the analysis of the legal and constitutional scope of the duty to give reasons in EU law.

As the most powerful executive actor in the Economic and Monetary Union (EMU), the Eurogroup has faced continuous demands to improve its accountability record since the euro crisis. One reform introduced to meet these demands were the Economic Dialogue – a regular exchange of views between the European Parliament and the President of the Eurogroup designed to ‘ensure greater transparency and accountability’ in the EMU. This chapter investigates the practical functioning of the Economic Dialogues with the Eurogroup between 2013 and the 2019 European Parliament elections. Applying the theoretical framework of the introduction, the purpose is to examine the extent to which the Parliament focuses on procedural or substantive accountability when questioning the Eurogroup President. Moreover, the chapter investigates the reasoning of parliamentary questions in line with the four accountability goods identified at the outset (openness, non-arbitrariness, effectiveness, and publicness). The findings show that Members of the European Parliament are eager to question the extent to which Eurogroup decisions are substantively open and effective, and to a lesser extent whether they are arbitrary or protect EU interests more generally. The analysis is based on fourteen transcripts of Economic Dialogues with the Eurogroup President, which took place between 2013 and 2019.

In the future, administrative agencies will rely increasingly on digital automation powered by AI. Can U.S. administrative law accommodate such a future? Not only might an automated state readily meet longstanding administrative law principles, but the responsible use of AI might perform even better than the status quo in terms of fulfilling administrative law’s core values of expert decision-making and democratic accountability. AI governance clearly promises more accurate, data-driven decisions. Moreover, due to their mathematical properties, AI and ADM tools might well prove to be more faithful agents of democratic institutions. Yet even if an automated state was smarter and more accountable, it might risk being less empathic. Although the degree of empathy in existing human-driven bureaucracies should not be overstated, a large-scale shift to the use of AI tools by government will pose a new challenge for administrative law: ensuring that an automated state is also an empathic one.

This chapter closes Part 1 by analysing how the opacity surrounding the use of AI and ADM tools by financial corporations is enabled, and even encouraged by the law. As other chapters in the book demonstrate, such opacity brings about significant risks to fundamental rights, consumer rights, and the rule of law. Analysing examples from jurisdictions including the US, UK, EU, and Australia, Bednarz and Przhedetsky unpack how financial entities often rely on rules and market practices protecting corporate secrecy such as complex credit scoring systems, proprietary rights to AI models and data, as well as the carve out of ‘non-personal’ information from data and privacy protection laws. The authors then focus on the rules incentivising the use of AI and ADM tools by financial entities, showing how they provide a shield behind which corporations can hide their consumer scoring and rating practices. The authors also explore potential regulatory solutions that could break the opacity and ensure transparency, introducing direct accountability and scrutiny of ADM and AI tools, and reducing the control of financial corporations over people’s data.

As scholars and activists seek to define and promote greater corporate political responsibility (CPR), they will benefit from understanding practitioner perspectives and how executives are responding to rising scrutiny of their political influences, reputational risk and pressure from employees, customers and investors to get involved in civic, political, and societal issues. This chapter draws on firsthand conversations with practitioners, including executives in government affairs; sustainability; senior leadership; and diversity, equity and inclusion, during the launch of a university-based CPR initiative. I summarize practitioner motivations, interests, barriers and challenges related to engaging in conversations about CPR, as well as committing or acting to improve CPR. Following the summary, I present implications for further research and several possible paths forward, including leveraging practitioners’ value on accountability, sustaining external calls for transparency, strengthening awareness of systems, and reframing CPR as part of a larger dialogue around society’s “social contract.”

Artificial intelligence (AI) and automated decision-making (ADM) tools promise money and unmatched power to banks and governments alike. As the saying goes, they will know everything about their citizens and customers and will also be able to predict their behaviour, preferences, and opinions. Global consulting firm McKinsey estimates that AI technologies will unlock $1 trillion in additional value for the global banking industry every year.1 Governments around the world are getting on the AI bandwagon, expecting increased efficiency, reduced costs, and better insights into their populations.

This chapter introduces the concept of CPR and gives a high-level overview of the chapters to follow. It also defines key terms, presents some background statistics on political spending over time, and offers an initial discussion of the extent to which business has captured the political process.

Chapter 1 provides an exposition of the general breadth and scope of the contemporary prohibition of the threat or use of force. After setting the prohibition in its historical context, it then examines the sources of the prohibition and its status as a ‘peremptory’ or ‘jus cogens’ norm of international law and what this means in terms of the prospects for its adaptation and modification in the future. While much focus has been traditionally placed upon the use of force, by comparison relatively little attention has been given to the threat of force, despite both coming under the contemporary rule against force. As such, the chapter sets out and provides an examination of the concept of a threat of force. While the prohibition is of undoubted importance, the decentralised nature of the international legal system means that accountability and responsibility for its violation are uncertain. The chapter seeks to examine this issue in detail, while also providing attention to the ‘human element’ to the prohibition, as well as assessing the continued relevance and effectiveness of the norm.

The Precipice of Hope: a conversation with Hahrie Han The concluding contribution to the volume features a conversation with scholar and activist Hahrie Han. Drawing on Han’s extensive experience as an adviser to popular movements across political divides, the conversation revisits the main questions of the volume: what is popular sovereignty and how can we understand and repurpose this historically important concept today? What is a people and under what conditions can a sense of solidarity across a vast array of social and political differences be build? Last but not least, are the idea and regulative ideal of rule of the people, and the very existence of a people that can govern itself, necessarily fictional, and to what extent is fiction an indispensable dimension of political concepts and norms.

The final chapter evaluates the social costs and benefits of the private criminal justice system. It first addresses the question of if and how a private criminal justice system can represent the interests of society as a whole. The chapter argues that a robust private criminal justice system can actually make the public criminal justice system more responsive to societal preferences, but only if it is open and transparent. A completely open private criminal justice system could be lightly monitored by actors in the public criminal justice system, who could intervene if necessary. Meanwhile, the private criminal justice system could blunt the politicization of the public criminal justice system and craft more flexible and creative responses to criminal conduct. The chapter also discusses the different levels of procedural protections for defendants, and the differences in the ways that private police are accountable in comparison with their public counterparts. It ends by exploring the ways in which a private criminal justice system could actually decrease the inequalities of the system and widen the net of social control, leading to more efficient detection and enforcement of criminal activity.