Liana Teodora Pascariu, ‘The Opportunity of a European Administrative Contract Law’

There was a tendency in the past few years, particularly in Europe, to harmonize and conceptualize in a common way the rules referring to the coming out, alteration, execution or termination of contracts, which could ultimately lead to the emergence of a new branch of European Union law, the contract law. This vision has gone from finding a number of three parameters , considered essential that determined the current evolution relating to contracts: socio-economic development of society and its legal framework; globalization, internationalization of judicial obligational relations; structural change of regulating the juridical obligational contractual bindings. The issue here is to determine whether these European interests have any implication on the matter of administrative contracts, on the possibility of a European administrative contract law and whether specialists have only addressed the field of civil contracts.

Pascariu, Liana Teodora, The Opportunity of a European Administrative Contract Law (June 30, 2016). European Journal of Law and Public Administration, 2016, Volume 3, Issue 1, pp 105-113.

‘Engstrom on Class Actions (x 2)’

“David Freeman Engstrom, Stanford Law School, has posted two papers on the history of class actions. The first, forthcoming in University of Pennsylvania Law Review 165 (2017), is ‘Revolution of 1978 and the Puzzle of American Procedural Political Economy’: ‘In 1978, top DOJ officials in the Carter Administration floated a revolutionary proposal that would have remade the consumer class action and, with it, the relationship of litigation and administration within the American regulatory state …'” (more)

[Dan Ernst, Legal History Blog, 23 June]

Richard Epstein, ‘Smart Consequentialism: Kantian Moral Theory and the (Qualified) Defense of Capitalism’

Moral philosophers have often grappled with defining rights and duties without looking to the overall consequences of certain rules. The leading defender of that position is Immanuel Kant, whose moral theory talks about how to universalize given norms without regard to their consequences. In this essay I claim that the Kantian standards are met at the macro level by the general system of welfare economics that relies on either Paretian or Kaldor-Hicks measures of social welfare that in turn support competitive, rather than monopolistic, institutions. I then argue that the same approach applies to conduct such as killing, lying, and breaking promises, which are all better understood in the same general framework used to establish and defend the characteristic features of both legal and moral obligations. Finally, this theory explains why obligations of beneficence are rightly regarded as imperfect.

Epstein, Richard A, Smart Consequentialism: Kantian Moral Theory and the (Qualified) Defense of Capitalism (January 1, 2014).

Perzanowski and Schultz, ‘Reconciling Intellectual and Personal Property’

… Part I begins by examining the relationship between intellectual and personal property. Sometimes courts have treated those rights as inseparable, as if transfer of a copy entails transfer of the intangible right, or retention of the copyright entails ongoing control over particular copies. But Congress and most courts have recognized personal and intellectual property as interests that can be transferred separately. Although the better view, this approach frequently overstates the independence of copyrights and rights in copies. Those interests interact; each helps to define the boundary of the other. The exhaustion principle, though historically associated with a clear distinction between copy and copyright, is in fact the primary tool in copyright law for mediating the somewhat indistinct line separating the copy and the work. Part II begins to outline the breakdown of this once stable equilibrium, focusing on the erosion of the notion of consumer ownership. In recent decades, courts have created two distinct regimes for resolving questions of copy ownership: one that applies to software and one that applies to everything else … (more)

Aaron Perzanowski and Jason Schultz, ‘Reconciling Intellectual and Personal Property’, Notre Dame Law Review volume 90:3 1211 (2015).

Gregory Keating, ‘Products Liability As Enterprise Liability’

In the American legal academy, the prevailing wisdom about the rise of modern products liability law is framed by a debate which took place more than thirty years ago. George Priest’s brilliant 1985 paper The Invention of Enterprise Liability, asserted that modern American products liability law in its formative moment was enterprise liability incarnate, but condemned this commitment as itself a profound defect in products liability law. With rhetoric worthy of a Biblical Jeremiad, Priest argued that the ‘unavoidable implication of the three presuppositions of [enterprise liability] is absolute liability. The presuppositions themselves do not incorporate any conceptual limit to manufacturer liability’. Priest’s work was both immensely influential and sharply contested. Gary Schwartz, writing independently at first, argued that products liability law was really fault liability all along. According to Schwartz, the ‘vitality of negligence’ was the driving force behind the expansion of tort liability over the course of the 20th century. Negligence conceptions lurked beneath product liability law’s surface embrace of strict liability. Or so Schwartz argued. Product defect liability was strict liability in name, but the risk-utility test of product defectiveness was in fact an aggressive application of negligence criteria.

Gregory C Keating, Products Liability As Enterprise Liability, Journal of Tort Law. Ahead of print. Published Online: 2017-06-23. DOI:

‘Cost of NHS negligence claims likely to double by 2023, says study’

“The annual cost to the NHS in England of settling clinical negligence claims is equivalent to training 6,500 doctors and is expected to double by 2023, according to the Medical Protection Society. Further increases in the £1.5bn bill will render such payments unsustainable and divert significant amounts of funding away from frontline patient care, the organisation has warned in a report …” (more)

[Owen Bowcott, Guardian, 23 June]

Katalin Sulyok, ‘Managing Uncertain Causation in Toxic Exposure Cases: Lessons for the European Court of Human Rights from US Toxic Tort Litigation’

Under Articles 2 (right to life) and Article 8 (right to private life) of the European Convention on Human Rights, the European Court of Human Rights (Strasbourg Court) decides cases involving personal health injuries allegedly caused by toxic exposures. Thus far no one has conducted a systematic inquiry on how the Strasbourg Court deals with uncertain causation inherent in toxic exposure cases. This paper provides an analytic framework for examining situations involving uncertain causal links under the Strasbourg system and evaluates the Strasbourg Court’s approach to uncertain causation and scientific evidence. It argues that the Strasbourg Court decides these cases based on certain proxies that describe some non-causal aspects of the case. By doing so, the Strasbourg Court can adjudge toxic exposure claims without evaluating scientific proof of causal links, which approach entails several drawbacks. The paper surveys the innovative legal tools US courts employ in toxic tort litigation to assess probabilistic scientific evidence and uncertain causation. It concludes with proposals for the Strasbourg Court to borrow certain techniques from toxic tort case law, which would help the Strasbourg Court adopt a more consistent approach to uncertain causation.

Sulyok, Katalin, Managing Uncertain Causation in Toxic Exposure Cases: Lessons for the European Court of Human Rights from US Toxic Tort Litigation (June 20, 2017).

Judith Younger, ‘Lovers’ Contracts in the Courts: Forsaking the Minimum Decencies’

People in intimate relationships – spouses or lovers, prospective spouses or lovers – make all kinds of promises to each other. This article focuses on those promises that deal with the financial details of the couples’ break-up, whether by death of one of them or ‘divorce’. The courts’ treatment of these promises in leaves serious injustice and makes the author wonder about the wisdom of enforcing any of them. She does not throw up her hands completely but rather criticizes current law and suggests changes to achieve more just results.

Younger, Judith T, Lovers’ Contracts in the Courts: Forsaking the Minimum Decencies (2007). William and Mary Journal of Women and the Law, Vol 13, No 349, 2007.

José Alvarez, ‘The Human Right to Property’

How does the human right of property relate to protecting human rights in the age of Trump? Human rights advocates faithful to Henkin’s vision need to combat the dangerous consensus between elements on the political left and right that international law (including arbitration bodies outside US courts) has no business protecting the right to property, for aliens or anybody else. From Hamilton through Henkin, immigrants with foresight have told us why the effective protection of rights, even in states with robust rule of law traditions such as the United States, requires supranational scrutiny. Although the United States is rightly regarded as a strong defender of property rights, even the US (along with other Western ‘rule of law’ states) could benefit from supranational scrutiny in this respect.

Alvarez, José E, The Fifth Annual Louis Henkin Lecture: The Human Right to Property (June 20, 2017).

‘Filming emergency scenes as a bystander: a tortious duty for those who do not assist victims?’

“In light of the recent London terror attacks in which bystanders filming the incident both hindered and assisted police, debate has raged as to whether this type of conduct at emergency situations should be seen as acceptable – particularly as nearly every individual now carries a device capable of recording such scenes and uploading them onto social media instantaneously. Lecturer Amelia J Uelmen, of Georgetown University Law Center, argued in a recent paper that the prevalence of bystanders filming or taking pictures of victims at emergency scenes requires the creation of a new tort: exploitative objectification of a person in need of emergency assistance. This would impose liability on those bystanders who film emergency scenes instead of assisting victims …” (more)

[Liam Elphick, 22 June]