Berryman and Carroll, ‘Coercive Relief – Reflections on Supervision and Enforcement Constraints’

Abstract:
This article draws on an emerging body of empirical research that indicates that parties place a greater emphasis in some situations on actual rather than substitutionary performance. It examines the case law on the enforcement of keep open clauses in Canada, Australia and other common law jurisdictions to highlight the disconnect between doctrinal orthodoxy on the enforceability of such clauses and party remedial preferences. The article explores the constraints of supervision and enforcement and concludes there is scope for enhancing party preference for performance through coercive remedies.

Jeff Berryman and Robyn Carroll, “Coercive Relief – Reflections on Supervision and Enforcement Constraints” (2014) 38 University of Western Australia Law Review 123-143

David Thorpe, ‘Adolescent Negligence, “Obvious Risk” and Recent Developments in Neuroscience’

Abstract:
Recent neuroscience research reveals that the human brain undergoes structural changes at the onset of puberty which predispose adolescents to physical risk-taking that in certain circumstances is difficult, if not impossible, to control. The implications of this research in respect to negligence under state civil liability legislation are considered in this article.

Thorpe, David, Adolescent Negligence, ‘Obvious Risk’ and Recent Developments in Neuroscience (January 1, 2014). Torts Law Journal, Volume 21, Number 3 (2014).

Conference: Corporate Accountability and Access to remedies for Corporate Wrongs: University of Bristol Law School, 8 November 2014

Registration closes on 5th November, register here for the event. There is no charge to attend the conference. This conference explores the challenges of holding business actors, in particular corporations, to account in terms of their social, environmental and human rights performance and making sure that they comply with relevant guidelines, principles and codes. There are many difficulties involved in seeking access to and achieving effective remedies for business wrongs, especially in the context of complex networks of suppliers and subsidiaries, based in different parts of the world. The UNGPs set out guidance for accessing judicial and non-judicial remedies, including internal grievance mechanisms … (more)

Research Assistant/ Research Associate / Research Fellow in Intellectual Property, National University of Singapore

The Centre for Law and Business is inviting applications from suitable candidates to carry out research on intellectual property law, particularly on patents. Subject to the standard NUS terms as to annual leave, the appointed candidate will be expected to be in residence throughout the term of his or her appointment … (more)

Paul Daly, ‘The Policy/Operational Distinction – a View from Administrative Law’

Abstract:
We can all doubtless agree that government action that causes harm to individuals should result in liability, save where officials have had to make difficult decisions in balancing complex economic, social, cultural and political considerations. Drawing a line between government action that gives rise to liability and government action that does not is, however, fiendishly difficult. Canadian courts have struggled to do so in a clear and convincing manner. For years, Canadian law was plagued by the policy/operational distinction. Now, the concept of a ‘core’ of policy decisions immune from liability threatens to wreak further confusion.

The policy/operational distinction, in its new core/non-core guise, has three features. First, it makes a categorical distinction between two different types of government action, one of which can give rise to liability, the other of which cannot. Second, it sorts government action into two spheres, one “core” and one not. Third, it shelters “core” decisions from judicial oversight.

An administrative lawyer would look askance at each of these three features. Administrative law demonstrates the limitations of categorical approaches, dislikes the creation of distinct spheres of activity, and has become increasingly suspicious of exclusions of judicial oversight. Administrative law highlights the limitations of categorical analysis by exposing the inevitable role of substantive considerations. Spherical approaches suffer from an additional limitation: they distract courts from the task of assessing the rationality, legality and fairness of administrative decisions. The concept of non-justiciability incorporates both of these limitations. And the retreating borders of non-justiciability demonstrate in addition how the idea that certain areas of government activities are off limits to courts is obsolescent.

Administrative law’s abhorrence of absolutes suggests alternative approaches. For instance, the claims of the policy/operational distinction to categorically exclude some decision-making from liability would not be given absolute effect. Rather, the “policy considerations” they embody would be treated as one factor in the analysis, weighing against the imposition of a duty of care. They would have a relative value, not an absolute value. If other considerations weighed strongly in favour of liability, a duty of care would be imposed.

Administrative law also presents one other possibility: that the “policy considerations” underpinning the policy/operational distinction could be addressed at the second stage of the negligence analysis, in determining whether the government agency met the required standard of care. Appropriate deference could be given to governmental decision-making based on a variety of substantive factors.

Daly, Paul, The Policy/Operational Distinction – a View from Administrative Law (October 28, 2014). Forthcoming in Matthew Harrington ed, Compensation and the Common Law (LexisNexis, Toronto, 2015).

Paul Heald, ‘How Copyright Keeps Works Disappeared’

Abstract:
A random sample of new books for sale on Amazon.com shows more books for sale from the 1880s than the 1980s. Why? This article presents new data on how copyright stifles the reappearance of works. First, a random sample of more than 2,000 new books for sale on Amazon.com is analyzed along with a random sample of almost 2,000 songs available on new DVDs. Copyright status correlates highly with absence from the Amazon shelf. Together with publishing business models, copyright law seems to deter distribution and diminish access. Further analysis of eBook markets, used books on Abebooks.com, and the Chicago Public Library collection suggests that no alternative marketplace for out‐of‐print books has yet developed. Data from iTunes and YouTube, however, tell a different story for older hit songs. The much wider availability of old music in digital form may be explained by the differing holdings in two important cases, Boosey & Hawkes v. Disney (music) and Random House v. Rosetta Stone (books).

Heald, Paul J, How Copyright Keeps Works Disappeared (December 2014). Journal of Empirical Legal Studies, Vol 11, Issue 4, pp 829-866, 2014.

Wei Zhang, ‘Understanding the Law of Torts in China: A Political Economy Perspective’

Abstract:
In this paper, I tried to connect the text of the Chinese tort law with the institutional context of lawmaking in China from a political economy perspective. Two determinants, political influence and populist pressure, were identified for the tort law legislation in China, and a simple spatial model was presented to demonstrate the mechanism through which these determinants might have affected the text of the law. In particular, my research suggested that, when injurers’ political influence kept constant, the populist pressure on the injurer group tended to push the tort law rules toward the pro-victim end. On the contrary, with the similar populist pressure, the politically influential injurers could induce legal rules to their advantage. Even within a particular type of torts, the subgroup of injurers who were better organized to exert political influence would be rewarded with more favorable rules on torts than their fellow injurers, especially where populist pressure was moderate. Hopefully, this research will inspire more efforts among students of Chinese law to explore the operation of law at the microscopic level against the macroscopic institutional backdrops of this country.

Zhang, Wei, Understanding the Law of Torts in China: A Political Economy Perspective (October 27, 2014).

‘How Tort “Reform” Ruins Health Care for Everyone’

“Ebola-infected Thomas Eric Duncan was misdiagnosed in an emergency room and sent home in Texas, a state where patient safety deteriorated significantly when hospital emergency rooms were immunized for negligence. Beloved comedian Joan Rivers died during an office-based procedure in New York, where an extraordinary 12% of adverse events during such procedures result in death …” (more)

[Joanne Doroshow, Huffington Post, 27 October]

Review of Tort Law Defences by James Goudkamp

“The subject of defences in tort law is one that has been surprisingly under-explored in torts scholarship – until now. In this very significant and thought-provoking book, James Goudkamp offers a fresh conceptualisation of the law governing tort defences, and does so with a rigour and energy that make the book a challenging yet highly worthwhile study. The author describes the work as a ‘distant descendant’ of his doctoral research at the University of Oxford, and it is clear that painstaking critical reflection underpins the thesis propounded by Goudkamp in this book. It is an invaluable addition to torts scholarship …” (more)

Desmond Ryan on Tort Law Defences by James Goudkamp. Legal Studies Volume 34, Issue 4, pages 743–745, December 2014. DOI: 10.1111/lest.12069. Article first published online: 29 OCT 2014.

Nancy Kim, ‘Boilerplate and Consent’

“In Margaret Jane Radin’s book, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law, Radin argues that boilerplate is a social problem leading to normative and democratic degradation of important rights. Although practitioners typically refer to “boilerplate” as the miscellaneous, standardized provisions at the end of a contract, Radin uses the term to refer to “standardized form contracts” which “like the rigid metal used to construct steam boilers in the past … cannot be altered”. Radin proposes an analytical framework for evaluating boilerplate and a bold panoply of alternatives to contract law to deal with the problem of boiler-plate which includes private and public approaches, and a novel use of tort law to deter the most egregious rights-deleting terms …” (more)

Nancy S Kim, ‘Boilerplate and Consent’, 17 Green Bag 293 (2014).