Brian Bix, ‘Agreements in American Family Law’

Family law historically, and still today, remains a paradigm of status rather than contract. Many family law obligations and rights are connected to a status that is either not chosen (for example, child) or a status whose holder has no or limited power to alter the package of rights and duties once the role is taken up (for example, parent or spouse). And many of the actions one takes within or across these status boundaries-for example, adoption or divorce-have also been established by an intricate set of state-established rights and duties that one has limited or no power to alter. In the United States (and in many other countries, as well, although the United States is the focus of this article), individuals now have significant power through agreement or other choices to alter domestic rights and obligations. For example, there are premarital agreements, marital agreements, separation agreements, open adoption agreements, co-parenting agreements, surrogacy agreements, formal and informal gamete donation arrangements, and agreements on the disposition of frozen embryos. This article explores which family-related agreements are (or should be) enforceable by the state. It is obvious, but still worth noting, that people can enter agreements on family matters with partners, spouses, children, and others that may work perfectly well without the need or desire for intervention by lawyers and courts. In the United States, the legal and social situation is such that people can arrange their family lives in many and diverse ways with little fear of legal or social sanction.

Bix, Brian, Agreements in American Family Law (2013). 4 International Journal of the Jurisprudence of the Family 115 (2013).

‘Consequences of Brexit for Private International Law and International Civil Procedure Law’

“What are the consequences of Brexit for Private International Law and International Civil Procedure Law? In the very first monograph in German concerning the legal ramifications of Brexit, Michael Sonnentag discusses these questions (Die Konsequenzen des Brexits für das Internationale Privat- und Zivilverfahrensrecht, Mohr Siebeck, 2017) …” (more)

[Giesela Ruehl, Conflict of Laws .net, 16 August]

‘Sir Cliff Richard privacy case: BBC announces decision not to seek permission to appeal’

“The BBC has announced that it will not seek permission to appeal against the judgment of Mann J awarding Sir Cliff Richard privacy damages of £210,000 ([2018] EWHC 1837 (Ch)). The BBC was refused permission to appeal by Mann J on 26 July 2018 ([2018] EWHC 2115 (Ch)). In the course of this judgment he made it clear that he had not imposed any ‘new blanket restraint on the reporting of the subject of a criminal investigation’ …” (more)

[Inforrm’s Blog, 16 August]

Vanessa Casado-Pérez, ‘A Street View of Property’

Parking on public streets is scarce. The current allocation system for parking spots based on rule of capture coupled with low parking fees creates a tragedy of the commons scenario. The misallocation of parking has consequences for commerce, for access to public spaces, and for pollution and congestion. Municipalities have not widely adopted the solution that economists propose to solve this scarcity problem: increase the price. Politics aside, the reluctance of municipalities to do so may be explained by the unique nature of public property as reflected in well-rooted legal and societal constraints. This unique nature helps explain, for example, municipalities’ ban of software applications (apps) allowing occupants of curbside parking to ‘sell’ their spots to would-be occupants in Boston or San Francisco. While the ban may be justified, the unique nature of public property is not incompatible with some well-designed, efficiency-oriented policies, as this paper will put forward. This article distills the legal constraints on curbside parking and any other public property management by drawing on case law regarding parking meters, case law on public resources managed in trust for the public, and decisions by municipalities regarding parking apps and privatization of parking meters. These constraints include, among others, that public property shall not be used to raise revenue, although placing a price on it may pursue other regulatory aims consistent with public use, or that municipalities shall not lose control of the public spaces dedicated to curbside parking. At a normative level, the above constraints provide a framework for assessing policies regarding curbside parking and, by extension the management of any other public property resources. At a positive level, the article proposes ways to make efficiency compatible with the principles guiding the management of public property. It analyzes to what extent the efficiency oriented policies that would translate into a price increase – variable pricing, tradable property rights, and privatization – clash with those principles constraining the monetization of public property. In addition, the article concludes by pointing to other situations where its analytical framework could be extended, such as other uses of public streets (for instance, use of public bus stops by shuttle-buses of private companies) or existing practices in connection to public resources of a similar nature (for instance, semi-privatization of beaches by surfers).

Casado-Pérez, Vanessa, A Street View of Property (February 8, 2018). Hastings Law Journal, forthcoming.

Ross Grantham, ‘To Whom Does Australian Corporate and Consumer Legislation Speak?’

A recent feature of corporate and consumer legislation in Australia is that as a matter of regulatory approach the legislation seems intended to speak directly to the end-user – the company director and the consumer – rather than lawyers. Accepting that such an approach is appropriate, the question this paper will explore is whether the manner and form of the legislation meets the underlying regulatory approach. Prima face, the highly prescriptive, repetitive, and legalistic way the law is expressed seems wholly unsuited to act as a practical guide to company directors and consumers as to their rights and obligations.

Grantham, Ross B, To Whom Does Australian Corporate and Consumer Legislation Speak? (July 5, 2018). (2018) 37 University of Queensland Law Journal, forthcoming.

Reader in Law, Newcastle Law School

Newcastle Law School seeks to strengthen the School’s senior team by appointing a Readership in Law. The successful candidate will provide leadership in a core area of the legal curriculum (we are particularly interested in private lawyers taken to include those willing to teach in areas such as Commercial Law, Land Law, Obligations and Remedies) providing strong research leadership in a central area of legal scholarship and enable Newcastle Law School’s excellence to be developed … (more)

Margaret Chon, ‘IP and Critical Methods’

This chapter briefly summarizes the impact of critical theoretical methods on intellectual property (IP) scholarship. It speculates that the influence of critical legal theory on IP is greater than typically acknowledged or understood, and draws on scholarly examples at the juncture of critical and liberal theories to make this point.

Chon, Margaret, IP and Critical Methods (July 24, 2018). Handbook on Intellectual Property Research (Irene Calboli and Lillà Montagnani, eds, Edward Elgar Press, forthcoming).

Trish O’Sullivan and Kate Tokeley, ‘Consumer Product Failure Causing Personal Injury Under the No-Fault Accident Compensation Scheme in New Zealand – a Let-off for Manufacturers?’

This article examines how the no-fault accident compensation system in New Zealand operates to relieve manufacturers from liability to consumers for product failures which cause personal injury or death. The state-run accident compensation scheme pays compensation to persons who suffer ‘personal injury by accident’ and bars claims for compensation from the party at fault. The advantage for consumers is that they are entitled to compensation from the accident compensation scheme as of right and do not need to make claims against manufacturers of products which cause injury or death. The article outlines some limited circumstances when consumers may claim compensation from manufacturers and identifies other avenues for holding manufacturers responsible for injury or death caused by faulty products. The paper makes three recommendations to increase manufacturer responsibility: (1) allow the regulatory body which administers the Accident Compensation system to claim compensation, by way of subrogation, from manufacturers in limited circumstances; (2) require manufacturers to pay an additional ‘product liability’ levy to the accident compensation scheme; and (3) amend the Health and Safety at Work Act 2015 to cover non-workplace accidents exposing manufacturers of unsafe products to Worksafe investigation and possible criminal liability. The article argues that imposing additional responsibility on manufacturers for product failures which cause personal injury or death is justified on the grounds of fairness. Arguments based on corrective fairness and distributive fairness can both be relevant in cases of personal injury caused to consumers by manufacturers.

Trish O’Sullivan and Kate Tokeley, Consumer Product Failure Causing Personal Injury Under the No-Fault Accident Compensation Scheme in New Zealand – a Let-off for Manufacturers?, Journal of Consumer Policy. First Online: 10 August 2018.

Bruce Feldthusen, ‘Justice Beverley Mclachlin: Canadian Tort Law’s Most Influential Judge – Who Knew?’

No judge has had a greater influence on modern Canadian tort law than Justice Beverley McLachlin. During her 28 years on the Supreme Court she sat on all but 13 of the 145 torts cases that came before the Court. Nine of the 13 she missed came during her first year. She was present for every torts hearing from outside Québec between 1992 and 2002, and for every torts hearing from 2002 until she retired in 2017. She was in the majority in 81.8% of the torts cases on which she sat, and gave the majority judgement in 25.7% of them. Her most important contributions were in the development of novel duties of care in negligence based on proximity, and in liability for sexual battery. This article searches for themes and patterns in these judgments, including both the triumphs and the inevitable failures. Either way, it is a remarkable story.

Feldthusen, Bruce, Justice Beverley Mclachlin: Canadian Tort Law’s Most Influential Judge – Who Knew? (August 1, 2018). Common Law Controversies at the McLachlin Court, Vanessa Gruben, Graham Mayeda and Owen Rees, eds, U Toronto Press, forthcoming; Ottawa Faculty of Law Working Paper No 2018-20.

Kwan and Chin, ‘Be careful what you promise: Proprietary estoppel in Cowper-Smith v Morgan

Proprietary estoppel provides one of equity’s most powerful remedies. Estoppel is an equitable doctrine which arises when one party acts on the reliance of the promise of another. The promise and corresponding reliance creates a quasi-contract with reliance acting as an alternative to the consideration usually required in contracts. Proprietary estoppel is distinct from other equitable estoppels in that a proprietary estoppel can act as a ‘sword’ and form the basis of a cause of action. If all of the parts of proprietary estoppel are made out, a court can modify or create property rights to satisfy the equity. With regard to the Canadian experience, the Court of Appeal for Ontario recently noted that proprietary estoppel has received ‘somewhat uneven treatment in Canada’. It is within this context that the Court of Appeal for British Columbia split on the proper scope for the Supreme Court of Canada. In Cowper-Smith v Morgan, the Supreme Court of Canada has both clarified the test for – and arguably expanded the scope of – proprietary estoppel in the context of promises exchanged between children over their mother’s care during her lifetime. The fact that a party lacks an interest in the disputed property at the time of the promise does not negate the obligation of fulfilling the promise. Instead, when the party responsible for the expectation has or acquires sufficient interest in the property, proprietary estoppel will attach to that interest and protect the equity. This article will discuss the law of proprietary estoppel in other jurisdictions and how the Supreme Court of Canada has infused this remedy with greater flexibility to satisfy the equity.

Rachael Kwan and Jason M Chin, ‘Be careful what you promise: Proprietary estoppel in Cowper-Smith v Morgan, Law ArXiv. Forthcoming in the Estates, Trusts and Pensions Journal. Original publication date 2018-07-17.