Gijs van Dijck, ‘Victim‐Oriented Tort Law in Action: An Empirical Examination of Catholic Church Sexual Abuse Cases’

Catholic Church sexual abuse cases have received worldwide attention, with lawsuits and nationwide investigations reported in various countries. This study examines a procedure – a hybrid between tort litigation and a victim compensation fund – that not only allowed sexual abuse victims to seek monetary compensation on an individual basis, but also nonmonetary relief, including an apology, recognition, and measures against those responsible for the abuse. The publication of all decisions offers a unique opportunity to analyze what victims pursued by filing a claim, whether what they were offered matched their objectives, and what impacted the probability of victims obtaining certain types of nonmonetary relief. After analyzing 1,237 decisions, this study reveals a mismatch between what victims sought and what they were offered. Surprisingly, the presence or absence of a few panelists (out of 27) turns out to be the best predictor of whether adjudicators ordered nonmonetary relief. Consequently, whether victims obtained nonmonetary relief did not only depend on a proper legal infrastructure, but mostly on the mentality and attitudes of those participating in the system.

van Dijck, Gijs, Victim‐Oriented Tort Law in Action: An Empirical Examination of Catholic Church Sexual Abuse Cases (March 2018). Journal of Empirical Legal Studies, Vol 15, Issue 1, pp 126-164, 2018.

Daniela Caruso, ‘The Transformation of Europe in US Legal Academia and Its Legacy in the Field of Private Law’

The rise of EU law in US legal scholarship – from international lawyers’ pet project to new fuel for comparative constitutional scholarship, and then on to self-contained subject matter with an independent raison d’être – is closely tied to the professional itinerary of Joseph Weiler. Under the auspices of Eric Stein and Peter Hay, EEC law developed as a discipline at the University of Michigan, and the collaboration between US legal academia and the European University Institute (EUI) grew in quality and intensity. The year 1984 saw the birth of a massive research project sponsored by the EUI and the Ford Foundation, named ‘Integration through Law’. According to the vision of senior coauthor Mauro Cappelletti, the project was to map the budding European legal integration onto the lessons of a mature American federalism. The blueprint of the project had a one-way direction, portraying the United States as a source of ‘experience’ and Europe as wide-eyed youth in need of inspiring examples. Joseph Weiler’s take on the project, however, was quite different. He was determined to avoid the trap of ephemeral similitude. Having identified a bed-rock of analogies, he then set out to unearth the specific dynamics that had enabled Europe’s legal change. Weiler’s own contribution to Integration through Law, focused as it was on Europe’s institutional uniqueness, found its natural sequel in The Transformation. This article explained Europe in terms remarkably intelligible to US lawyers, but avoided any direct reference to US federalism. This was, familiarly enough, a constitutional project based on a court-led orchestration of federal and state powers. Yet its internal analytics, shaped by the logic of free trade and by technocratic opacity, were sufficiently rich and peculiar to dispel any off-putting déjà vu effect.

Caruso, Daniela, The Transformation of Europe in US Legal Academia and Its Legacy in the Field of Private Law (January 1, 2013) in The Transformation of Europe: Twenty-Five Years On, M Maduro and M Wind, eds, Cambridge University Press 2017.

Vanberg and Maunick, ‘Data protection in the UK post-Brexit: the only certainty is uncertainty’

The EU General Data Protection Regulation was published in the Official Journal of the European Union on May 4 2016 and it will be binding on all member states including the UK, from 25 May 2018. This paper critically examines the implications of Britain’s exit from the EU on data protection law in the UK with a particular focus on the various trade models available to the UK such as the EEA model, the Swiss model, the free trade agreement as adopted by Canada, as well as the WTO model. Irrespective of the model chosen for exiting the European Union, the UK will adopt standards almost identical to the GDPR in order to remain a competitive actor in the global economy. Nevertheless, the paper contends that this does not necessarily suffice to secure an adequacy decision from the EU Commission. As clarified in the European Commission’s January 2018 Notice, if the UK and the EU cannot reach an agreement on data transfers bureaucratically burdensome requirements could apply to UK businesses. This adds to the prevailing uncertainty around Brexit.

Aysem Diker Vanberg and Maelya Maunick, Data protection in the UK post-Brexit: the only certainty is uncertainty, International Review of Law, Computers and Technology, published online: 15 Feb 2018.

‘Expressivism, Corrective Justice, and Civil Recourse’

Scott Hershovitz, Treating Wrongs as Wrongs: An Expressive Argument for Tort Law, 10 Journal of Tort Law 1 (2017), available at SSRN. With clear examples, incisive and sweeping philosophical argumentation, and an engaging prosaic lilt, Scott Hershovitz writes about tort law the way his mentor Ronald Dworkin wrote about constitutional law. If this sounds like high praise, it is. Hershovitz’s Treating Wrongs as Wrongs: An Expressive Argument for Tort Law, 10 J Tort L 1 (2017) is a pleasure to read. Indeed, I regard Treating Wrongs as Wrongs as one of the most important torts articles published in many years. Its excellence of course motivates me to push hard against its central themes to see whether they stand up. Hershovitz’s principal claim in this article is that ‘tort law is very much an expressive institution’. He explains what it means to say that an area of law is an expressive institution, why this is correctly said about tort law, what messages tort law expresses – ‘this person is entitled to be treated with dignity’ and ‘the defendant wronged the plaintiff’ – and why it is an important fact about tort law that it sends these messages … (more)

[Benjamin C Zipursky, JOTWELL, 20 February]

‘Thoughts on Torts’: Jane Stapleton: Clarendon Law Lectures, Oxford, 30 April – 2 May 2018

Periodically academia is swept with enthusiasm for a grand theory which describes tort law as being fundamentally ‘all about one thing’, like carrot purée. This series of lectures explores a different type of scholarship, one that places at centre stage what judges do and say, and how they understand their role. Such scholarship is capable of both smoothly absorbing legal change signalled by courts and influencing courts with its insights, so it is convenient to describe it as ‘reflexive tort scholarship’ … (more)

Becher and Zarsky, ‘Minding the Gap’

The digital world has become part of our DNA. The way e-commerce, human behavior and law interact and affect one another has come to be of enormous significance. Among other things, the internet equips consumers with a variety of platforms to share information of a volume unimaginable before. As part of this development, online information flows allow consumers to learn about businesses and their contracts efficiently and quickly. Consumers can become informed by coming across the impressions that other, experienced, consumers share and spread. Potentially, consumers may familiarize themselves with the contents of contracts through the experiences of other consumers. Online and offline, relations between consumers and businesses are most frequently governed by consumer standard form contracts. For decades such contracts have been assumed one-sidedly biased against consumers …

Becher, Shmuel I and Zarsky, Tal, Minding the Gap (January 6, 2018).

Bojan Spaic, ‘The Authority of Precedents in Civil Law Systems’

In this paper I’m primarily concerned with framing the role of precedents in terms of reasons that they can give to judges in various legal systems. The main purpose of the paper is to identify the ways in which precedents can be authoritative in judicial reasoning. First, I’ll explain the distinction between two kinds of precedents – precedents of solution and precedents of interpretation. Second, I’ll identify the ways in which both precedents of solution and precedents of interpretation affect the reasoning of future courts, and focus on the cases in which this affection can be considered practically and epistemically authoritative. Finally, I’ll consider the conditions under which it can be epistemically justified to treat precedents as authoritative, with a focus on the possibility of justifying the epistemic authority of interpretative precedents.

Spaic, Bojan, The Authority of Precedents in Civil Law Systems (February 5, 2018).

Shivprasad Swaminathan, ‘The Will Theorist’s Mailbox: Misunderstanding the Moment of Contract Formation in the Indian Contract Act, 1872’

“Section 4 of the Indian Contract Act 1872, provides that an offer is complete when it comes to the knowledge of the offeree and that an acceptance is complete as against the offeror when it is put in the course of transmission by the acceptor so as to be out of his power and as against the acceptor when it comes to the knowledge of the offeror. Section 5 provides that the offer can be revoked at any time before the acceptance is dispatched and that an acceptance can be revoked at any time before it comes to the knowledge of the offeror …” (more)

Shivprasad Swaminathan, ‘The Will Theorist’s Mailbox: Misunderstanding the Moment of Contract Formation in the Indian Contract Act, 1872’, Statute Law Review, Volume 39, Issue 1, 15 February 2018, Pages 14–26,

Sergio Campos, ‘The Class Action Awakens’

For the past eight terms the Supreme Court has increased its focus on the law of class actions. In doing so, the Court has revised the law to better accord with a view of the class action as an exception to an idealized picture of litigation. This ‘exceptional’ view of the class action has had a profound impact not only on class action law, but procedural and substantive law in general. However, in the October 2015 term the Court decided three class action cases which support an alternative, ‘functional’ view of the class action, one that does not view the class action as exceptional, but as one of many equally permissible tools to serve the objectives of substantive law. This alternative view has the potential to have a similarly significant impact on the law, but it is not certain whether the Court will further develop this alternative, especially given its most recent class action decisions. This article discusses the development of the ‘exceptional’ view of the class action, the awakening of a ‘functional’ alternative view, and the uncertain path ahead.

Campos, Sergio J, The Class Action Awakens (February 15, 2018).

Dan Burk, ‘Punitive Patent Liability: A Comparative Examination’

Monetary damage awards and permanent injunctions have long been viewed as complementary remedies: damages typically serve as compensation for past realized harm, and injunctions serve as a restriction against future unrealized harm. But some commentary in the patent literature also argues that the potential for injunctive relief is essential to provide deterrence against opportunistic or strategic patent infringement; in other words, that injunctions are in effect a punitive remedy. Given the eBay requirement of irreparable injury for equitable remedies, this assertion raises questions regarding the value of patent injunctions: what measure of monetary remedy, if any, will provide the equivalent deterrence to an injunction, and is there an incommensurable measure of injunctive deterrence that damages cannot provide?

I consider these questions in the context of the global series of disputes surrounding ‘standard essential patents’ (SEPs) in handheld telecommunication devices, a set of disputes sometimes dubbed the ‘smartphone wars’. This context provides a limiting instance for examining the punitive effects of injunctive relief. I suggest, first, that as a general rule damages may substitute for injunctions to deter bad faith behavior by patent infringers; second, that the literature supports such a substitution of damages for injunctive remedies in instances of bad faith or willfulness; and third, that substitute damages are appropriately modified or enhanced when bad faith or willfulness is found. I show that in the particular context of SEP infringement, these propositions leave open a path to deter strategic behavior by potential licensees, while setting remedial defaults that deter the more serious problem of strategic behavior by SEP owners. In doing so, I draw together and resolve several disparate strands of recent scholarship on patent remedies.

Burk, Dan L, Punitive Patent Liability: A Comparative Examination (February 5, 2018). Review of Litigation, Vol 36, 2018.