Peyer and Heywood, ‘Walking on thin ice: the perception of tortious liability rules and the effect on altruistic behaviour’

Laypeople are often deterred from undertaking altruistic acts, assuming that they face a risk of negligence liability should they injure others while helping. We argue that the laypeople’s interpretation of the law does not correspond with the courts’ interpretation of negligence liability. Reviewing the case law, we demonstrate that the courts treat such cases with leniency in the spirit of the Compensation Act 2006, s 1 and the Social Action, Responsibility and Heroism Act (SARAH) 2015, s 2. Thus, the negligence liability rules do not offer a sufficient explanation for the widely-held opinion that acts of altruism may give rise to liability. We hypothesise that the public’s perception of legal rules is determined by a number of well-known biases and is not founded in the law itself. In the light of those biases, we contend that the function of the Compensation Act 2006, s 1 and SARAH 2015 does not lie in the substance but in their value as potential signals to reassure laypeople.

Sebastian Peyer and Rob Heywood, Walking on thin ice: the perception of tortious liability rules and the effect on altruistic behaviour, Legal Studies, Published online: 23 April 2019.

Alex Silk, ‘Theories of Vagueness and Theories of Law’

It is common to think that what theory of linguistic vagueness is correct has implications for debates in philosophy of law. I disagree. I argue that the implications of particular theories of vagueness on substantive issues of legal theory and practice are less far-reaching than often thought. I focus on four putative implications discussed in the literature concerning (i) the value of vagueness in the law, (ii) the possibility and value of legal indeterminacy, (iii) the possibility of the rule of law, and (iv) strong discretion. I conclude with some methodological remarks. Delineating questions about conventional meaning, legal content determination, and norms of legal interpretation and judicial practice can motivate clearer answers and a more refined understanding of the space of overall theories of vagueness, interpretation, and law.

Alex Silk, Theories of Vagueness and Theories of Law, Legal Theory, Published online: 23 April 2019.

‘Rethinking Tort Liability for Suicides’

Alex B Long, Abolishing the Suicide Rule, 113 Northwestern University Law Review 767 (2019). Suicide has become an important public-health problem, leading Alex Long to revisit the unduly neglected question of whether tort law should recognize wrongful-death actions for cases in which the defendant’s tortious conduct caused the victim to commit suicide. After describing the increasingly worrisome trends – suicide is now the tenth leading cause of death in the country – Long insightfully constructs the historical, religious, and sociological motivations embedded in the tort doctrines, labeled the ‘suicide rule’ by one jurisdiction, that ordinarily bar recovery for suicides. ‘Tort law’s historical treatment of cases involving suicide represents a combination of society’s traditionally negative views regarding suicide and tort law’s traditional concerns with foreseeability and expanding liability in cases involving emotional injury’ … (more)

[Mark Geistfeld, JOTWELL, 25 April]

Friehe and Gabuthy, ‘On Plaintiff Preferences Regarding Methods of Compensating Lawyers’

This paper analyzes a litigation contest in which the plaintiff’s lawyer and the defendant choose effort. The plaintiff selects the relative importance of a contract component related to the judgment (similar to contingent fees) and a component related to the lawyer’s efforts (similar to conditional fees) to ensure lawyer participation and guide the lawyer’s decision-making. For our setup, we find that the plaintiff considers the component related to the lawyer’s effort to be the relatively more desirable instrument in the light of its effort-inducing and cost characteristics. However, high levels of the lawyer’s outside utility may limit the role of this component.

Tim Friehe and Yannick Gabuthy, On Plaintiff Preferences Regarding Methods of Compensating Lawyers, Review of Law and Economics. Published Online: 2019-04-25. DOI:

Just Published: Modern Studies in Property Law, Volume 10 edited by McFarlane and Agnew

This book contains a collection of papers presented at the Twelfth Biennial Modern Studies in Property Law Conference held at University College London in April 2018. The conference and its published proceedings are an established forum for property lawyers from around the world to showcase the latest research. This collection includes a keynote address by Dame Elizabeth Gloster, former Vice President of the Court of Appeal (Civil Division), on technology in property law. It also includes plenary addresses by Professor Henry Smith on the architecture of property law and the challenge of compiling the American Law Institute’s Fourth Restatement of Property, and by Her Honour Judge Karen Walden-Smith on the role of the first instance judge in property cases. Sixteen further chapters address a wide range of issues, including the theory and taxonomy of land law, the re-evaluation of land obligations, the nature and operation of equitable property rights and shares, the role of property in commerce, comparative approaches to leases and trusts, and contemporary issues in land registration. Collectively, the chapters demonstrate the vibrancy, diversity and importance of property law and of current research in the subject.

Ben McFarlane and Sinéad Agnew (eds), Modern Studies in Property Law, Volume 10. Hart Publishing. 464pp. ISBN-10: 1509921370. £115.00 (but 20% off with this flyer).

Liu and Hyman, ‘Targeting Bad Doctors: Lessons from Indiana, 1975-2015’

For physicians, quality of care is regulated through the medical malpractice and professional licensing/disciplinary systems. The medical malpractice (med mal) system acts through ex post private litigation; the licensing system acts through ex ante permission to practice (ie, licensure), coupled with ex post disciplinary action against physicians who engage in ‘bad’ behavior. How often do these separate mechanisms for ensuring quality control take action against the same doctors? With what result? We study these questions using 41 years of data (1975–2015) from Indiana, covering almost 30,000 physicians. Disciplinary sanctions are much less common than med mal claims – whether paid or unpaid. Only a small number of physicians are ‘tagged’ by both systems. Disciplinary risk increases with the number of past med mal claims. Paid claims have a greater impact than unpaid claims, and large payouts (≥100 k, 2015$) have a slightly greater impact than small payouts on disciplinary risk. The risk of a paid claim increases with more severe disciplinary sanctions (ie, revocation and suspension). Our findings suggest an obvious model for the interaction of these two systems.

Jing Liu and David A Hyman, Targeting Bad Doctors: Lessons from Indiana, 1975–2015, Journal of Empirical Legal Studies. First published: 21 April 2019.

‘Save the date: IC2BE final Conference 21 and 22 November 2019, Antwerp’

“The final conference for the EU-funded IC2BE project will take place in Antwerp on 21 and 22 November 2019. This project is the follow-up of the EUPILLAR project, which was concluded in 2016. IC2BE investigates in eight Member States the application of the European Private International Law Instruments of the second generation, ie the unified procedures for cross-border enforcement …” (more)

[Thalia Kruger, Conflict of Laws .net, 24 April]

‘Case Law: Ali v Channel 5, Can’t pay? Court of Appeal does not take claimants’ damages away (but neither will it increase them)’

“In Ali and another v Channel 5 Broadcasting Ltd [2019] EWCA Civ 677, the Court of Appeal considered whether countervailing privacy and the public interest/freedom of expression rights had been properly balanced, together with the appropriate award of privacy damages arising from footage of an eviction shown on Channel 5, the Defendant in this action …” (more)

[Tom Double, Inforrm’s Blog, 24 April]

Ridge and Dietrich, ‘Challenging Conceptions of Accessory Liability in Private Law’

This article concerns recent challenges to the utility of ‘accessory liability’ as an organising principle or concept in private law and argues that accessory liability is a coherent body of law with common features that is worthy of separate, holistic treatment. We defend a conceptual framework for accessory liability which is dynamic in its operation and which does not dictate the precise legal content of accessory liability in different contexts. Such a conception of accessory liability has come under challenge from recent cases and commentary which either minimise the scope and analytical relevance of accessory liability altogether in equity and tort law or propound a conceptual framework for accessory liability that is fixed in its application and uniform in its content across the whole of private law. Our purpose in this article is to resist both the dismissal, and simplification, of accessory liability in private law.

Pauline Ridge and Joachim Dietrich, Challenging Conceptions of Accessory Liability in Private Law, Cambridge Law Journal, Published online: 22 April 2019.

Christopher Rodgers, ‘Towards a Taxonomy for Public and Common Property’

This article argues that public property rights should be recognised as a separate category of property interest, different and distinct from private and common property interests and conferring distinctive rights and obligations on both ‘owners’ and members of the public. It develops a taxonomy to differentiate private, public and common property rights. The article concludes that it is a mistake to think in terms of ‘private property’, ‘common property’ or ‘public property’. The division and allocation of resource entitlements in land can result in private, common and public property rights subsisting over the same land simultaneously, in different combinations and at different times. The categorisation of property interests in land (as private, common or public) may also shift and change from time to time. The article considers the importance of distinguishing between private, common and public property interests for developing new strategies for environmental governance, and for implementing the effective protection of natural resources.

Christopher Rodgers, Towards a Taxonomy for Public and Common Property, Cambridge Law Journal, Volume 78, Issue 1, March 2019, pp 124-147.