‘Piercing the Corporate Veil: Historical, Theoretical and Comparative Perspectives’

“The concept of a company as a separate entity from its shareholders is well known and recognized in many common law and civil law jurisdictions. Generally, it is regarded as a fundamental aspect of corporate law and for this reason courts are loath to depart from it. Nevertheless, the principle of separate personality is not absolute and in both common law and civil law countries the courts have the power to depart from it. Where this occurs, it is often said that the courts ‘pierce’ or ‘lift’ the corporate veil. This will usually, but not inevitably, lead to liability being imposed on another person, perhaps in addition to the corporate vehicle …” (more)

Cheng Han Tan, JiangYu Wang and Christian Hofmann, Oxford Business Law Blog, 16 October.

Tim Kingsbury, ‘Copyright Paste: The Unfairness of Sticking to Transformative Use in the Digital Age’

Digital communication continues to transform our world, and information is shared continuously faster because of exponential technological advances. For example, due to an immense online audience, many companies now use GIF images containing short movie or song clips to advertise their business on social media. This has apparently been an effective advertising tool.

New information-sharing techniques inevitably birth new copyright implications. Our societal increase in digital communication poses new challenges for copyright jurisprudence and for the courts, because in some instances – such as GIF advertising – it is unclear how current copyright law would distribute certain ownership and usage rights. This Note explores the background and history of US copyright law, including the fair use doctrine, the codification of that doctrine, and the Supreme Court’s development of the ‘transformative use’ doctrine.

The complex ambiguity of the fair use doctrine is discussed at length, which is emphasized by the inconsistent application of the four fair use factors among the federal circuits. Given the impending confrontation between GIFs and copyright holders, as well as the current ambiguity in fair use doctrine, this Note argues in favor of the Seventh Circuit’s return to more traditional copyright values through its appraisal of the ‘market effects’ factor as the most important of the four statutory considerations for determining fair use listed in Section 107 of the Copyright Act of 1976.

Tim Kingsbury, Copyright Paste: The Unfairness of Sticking to Transformative Use in the Digital Age, 2018 University of Illinois Law Review 1471 (Oct 12, 2018).

‘Climate Change, Responsibility and Liability’: International Conference, Graz, Austria, 8-10 November 2018

Conference Program: Thursday, November 8th, 2018: University of Graz, Aula – 9:00 Welcome: Dean, Faculty of Law. Climate change, impacts and attribution of anthropogenic causes: status and challenges Gottfried Kirchengast, Douglas Maraun, Andrea Steiner, University of Graz; Oslo Principles and Climate Principles for Enterprises Jaap Spier, University of Amsterdam; Attribution of moral and political responsibilities Lukas Meyer, University of Graz; Discussion; Coffee Break 11:10-11:30; …” (more)

‘Emphasizing the Public Interest in Charitable Gifts’

Susan Gary, Restricted Charitable Gifts: Public Benefit, Public Voice, 81 Albany Law Review 101 (2018), available at SSRN. Susan Gary’s ‘Restricted Charitable Gifts: Public Benefit, Public Voice’ makes the case for legal reforms that reflect the public’s interest in loosening donor control of charitable gifts. Gary writes that her article is aimed at advocating for the adoption of reforms that increase ‘the consideration of the public benefit standard in charities law’, so I know that she didn’t set out to change the way I teach my Estates course. But that’s exactly what she did, and it’s why I like her article … (more)

[Sarah Waldeck, JOTWELL, 15 October]

Mark Van Hoecke, ‘Do judges reason differently on both sides of the Channel?’

“Mark Van Hoecke, Professor of Comparative Law, gave an insightful inaugural lecture on ‘Do judges reason differently on both sides of the Channel?’, at the School of Law, Queen Mary University of London, on 3rd September 2018. To a keen audience of academics and practitioners, Professor Van Hoecke compared Common Law reasoning with that of French and German legal reasoning to address the following issue …” (more, download)

‘Comment on Claeys, “Two Suggestions for Conceptual Property Theory”’

“In his post, Eric Claeys introduces a couple of important forthcoming articles. I welcome these contributions to the already extensive ‘debates’ over property theory. These articles are a real advance in the morally oriented property theory literature. I’d like to focus how they bring to that literature considerations that are more prominent in the functionalist literature than Eric’s article might lead one to believe …” (more)

[Henry Smith, New Private Law, 15 October]

Peter Westen, ‘Poor Wesley Hohfeld’

John Wesley Hohfeld has lost one audience and gained another within the century since he published his seminal Fundamental Legal Conceptions. Hohfeld originally conceived of his work as an aide to lawyers and law students. And law faculties initially embraced him with ardor. Over time, however, law faculties have lost interest in Hohfeld, and moral philosophers have taken their place, such that it is difficult to read widely today regarding the ethics of war and self defense without coming across supportive references to Hohfeld. Unfortunately, moral theorists too often invoke Hohfeld for propositions that he explicitly disavowed. Using Uwe Steinhoff and other commentators as foils, I discuss several of the most common errors that moral and legal commentators make about Hohfeld.

Westen, Peter K, Poor Wesley Hohfeld (September 21, 2018). San Diego Law Review, volume 55, no 2, 2018.

Hayden and Bodie, ‘Shareholder Voting and the Symbolic Politics of Corporation as Contract’

American corporations are structured in such a way that shareholders, and shareholders alone, have the right to vote in all significant corporate decisions. Over the years, this exclusive shareholder franchise has been supported by an ongoing procession of justifications. But as those arguments have fallen by the wayside, shareholder primacists have circled back and latched upon a final argument for the special voting status of shareholders, arguing that this fundamental feature of corporate governance is the product of the set of freely-bargained-for agreements among all corporate constituents. Because this set of agreements reflects the preferences of all parties to the corporate contract, they contend, it should thus be viewed as the best way to structure the corporation.

The thesis of this Article is that the ‘nexus of contracts’ theory is both descriptively wrong and normatively hollow, and, in particular, provides a poor foundation for the exclusive shareholder franchise. The corporation is neither a mere contract nor a set of contracts, literally or metaphorically. Indeed, the whole notion of the corporation as a nexus of contracts has been a theatrical production of dodges, feints, and posturing designed to rationalize and justify the existing order of things and create the kind of rhetorical space corporate law scholars need to advance their own particular policy positions. Once freed from the constraints of false theories, it is time to do the hard work of starting over and determining what the ideal structure or structures might be for organizations that bring together capital and labor in a process of joint production.

Hayden, Grant M and Bodie, Matthew T, Shareholder Voting and the Symbolic Politics of Corporation as Contract (September 21, 2018). Wake Forest Law Review, volume 53, 2018.

Montagnani and Trapova, ‘Safe harbours in deep waters: a new emerging liability regime for Internet intermediaries in the Digital Single Market’

Online intermediaries, often categorized as the gatekeepers of information, have become major protagonists in a variety of policy and legislative actions within the EU Digital Single Market. These initiatives endeavour to tackle illegal content online by imposing enhanced responsibility rules. The emerging scheme undertakes to nevertheless maintain the safe harbour liability exemption under the E-Commerce Directive. In this article we argue that whether that is really the case remains to be seen, in particular with a view to the proposal for a new directive on copyright in the Digital Single Market, the proposal to amend the Audio-visual Media Services Directive and the Commission’s guidance on enforcement of intellectual property rights. This article strives to understand how the new set of obligations is accommodated in the realm of existing rights and duties and whether the boundaries of the safe harbour are blurred by virtue of these recent legislative initiatives.

Maria Lillà Montagnani and Alina Yordanova Trapova, Safe harbours in deep waters: a new emerging liability regime for Internet intermediaries in the Digital Single Market, International Journal of Law and Information Technology, https://doi.org/10.1093/ijlit/eay013. Published: 10 October 2018.

Rob Heywood, ‘“If The Problem Persists, Come Back to See Me …” – An Empirical Study of Clinical Negligence Cases Against General Practitioners’

The law of negligence, as it applies to General Practitioners (GPs), is underexplored in the literature. There has been no substantial research undertaken that has penetrated deeper into claims that have actually reached court in order to analyse judicial reasoning pertaining to both breach of duty and causation. Given the increased pressures that GPs now face, these are important questions to consider. It is against this backdrop that this article seeks to present the findings of an empirical investigation into a number of reported clinical negligence claims brought against GPs. This analysis provides an original contribution to the developing academic discussion surrounding the changing nature of the doctor–patient relationship, and how it has come to be viewed in the eyes of the law. It also assesses the extent to which judges have become more receptive to protecting patient rights through the law of negligence, engaging in the expanding discourse concerning judicial deference to medical decision-making. It is argued that judges should sometimes show a greater propensity to question expert medical testimony in support of GPs, because some of the issues GPs typically face are less complex than in other clinical negligence cases involving technical areas of medicine, and that causation does not appear to be such a key factor in defeating patient claims. The work also provides useful guidance for GPs and their advisers in respect of where liability is most likely to be founded and how behaviour can be modified accordingly to reduce the chances of being sued.

Rob Heywood, ‘If The Problem Persists, Come Back to See Me …’ – An Empirical Study of Clinical Negligence Cases Against General Practitioners, Medical Law Review, https://doi.org/10.1093/medlaw/fwy030. Published: 11 October 2018.