Richard Lewis, ‘Humanity in Tort: Does Personality Affect Personal Injury Litigation?’

This article examines whether the character of people involved in personal injury claims affects their outcome irrespective of the legal rules. For example, does the personality or background of the litigants or their lawyers influence whether an action succeeds and how much damages are then paid?

A rise in the number of claims is noted here as part of a contested ‘compensation culture’ in personal injury. In a demographic analysis, the article identifies typical claimants and the injuries from which they suffer. Claims have been gathered in increasing numbers by law firms in response to market pressures encouraging them to process minor injury cases in bulk. The firms have changed their structure and created ‘settlement mills’ where there may be little scope for individuals to affect the routine processing of small claims. By contrast, in more serious injury cases character and personality are more likely to make a difference. These findings are suggested by the author’s empirical study of the views of lawyers on the operation of the claims system: practitioners who have been interviewed are given voice here.

The article challenges traditional perspectives of tort where it is often implicit that claims are resolved only in court on the basis of textbook rules on liability and damages. There has been a failure to take account of other factors which may influence both the settlement of claims and the few cases that go to trial. In this wider context the article forms part of a literature revealing that the operation of the tort system in practice differs markedly from that in theory. It calls into question those philosophies of tort liability which fail to consider how claims are actually determined.

Lewis, Richard, Humanity in Tort: Does Personality Affect Personal Injury Litigation? (January 21, 2018), (2018) 71 Current Legal Problems.

‘Crowdsourced Bibliography on IP and Distributive Justice’

“Professor Estelle Derclaye recently sparked a terrific email thread among IP professors about articles tackling IP from a distributive justice perspective. Here is a lightly edited list of the suggested works, roughly in chronological order, with links (open access, where possible) and, for somewhat arbitrarily selected works, short quotations or descriptions. If you have additions or corrections, feel free to email me or add them to the comments …” (more)

[Lisa Ouellette, Written Description, 20 January]

Sarah Worthington, ‘The Commercial Triple Helix: Contract, Property and Unjust Enrichment’

This chapter revisits some of the enduring controversies affecting the interface between contract, property and unjust enrichment. Unless these controversies are settled satisfactorily, the framework for commercial law will be weak. Having trawled through the detail, four points are made to assist analysis in these areas: 1. Property questions must be answered before liability questions. The location of legal title and the existence of derivative interests (both common law possessory interests and equitable security and trust interests) must be settled before considering liability questions …

Worthington, Sarah, The Commercial Triple Helix: Contract, Property and Unjust Enrichment (January 1, 2018), in P Devonshire and R Havelock (eds), The Impact of Equity and Restitution in Commerce (Hart Publishing), forthcoming; University of Cambridge Faculty of Law Research Paper No 7/2018.


“The term ‘privacy’ is used frequently in ordinary language as well as in philosophical, political and legal discussions, yet there is no single definition or analysis or meaning of the term. The concept of privacy has broad historical roots in sociological and anthropological discussions about how extensively it is valued and preserved in various cultures. Moreover, the concept has historical origins in well known philosophical discussions, most notably Aristotle’s distinction between the public sphere of political activity and the private sphere associated with family and domestic life. Yet historical use of the term is not uniform, and there remains confusion over the meaning, value and scope of the concept of privacy …” (more)

‘Privacy’, Stanford Encyclopedia of Philosophy. First published Tue May 14, 2002; substantive revision Thu Jan 18, 2018.

James Bailey, ‘Aggravated Damages or Additional Awards of Solatium: A Distinction without a Difference?’

What are aggravated damages? Can they be recovered under Scots law? These are questions which might cross the mind of a Scots lawyer upon noticing the label in a tort textbook or the English case reports. This article seeks to address these two questions, in addition to critically examining whether aggravated damages ought to be recognised north of the border. The article will show that the Scots courts have granted additional awards of solatium in circumstances where the English courts would likely award aggravated damages. It will be argued that, despite their similarities, this traditional Scots approach is preferable to the English aggravated damages model. While the central focus is the right approach for Scots law, the article may still be of interest to English lawyers, since there are signs that English law might be moving closer to the Scots position.

James Bailey, Aggravated Damages or Additional Awards of Solatium: A Distinction without a Difference?, Edinburgh Law Review, Volume 22 Issue 1, Page 29-54. Available Online Jan 2018.

‘The Dead’s Online Accounts’

Alberto B Lopez, Posthumous Privacy, Decedent Intent, and Post-Mortem Access to Digital Assets, 24 George Mason Law Review 183 (2016). In Posthumous Privacy, Decedent Intent, and Post-Mortem Access to Digital Assets, Alberto B Lopez discusses a distinctly modern problem: how much access should a personal representative have to decedent online accounts? Surprisingly few states have addressed this important question, although there is a recent flurry of proposals. Lopez argues that the legislative debate has failed to account for the decedent’s privacy interest and has mostly ignored decedent intent, the lodestar of estates and trusts law. He concludes that when decedent privacy and intent are properly ‘included in the legislative balance’, policies will lean ‘toward non-disclosure for individuals who die intestate and toward disclosure if the testator has instructed [by will] that account contents be available’ (p242). While I would ultimately permit more access than Lopez recommends, his article is a must-read because it highlights an important estate planning problem and makes the reader ponder the appropriate scope of post-mortem privacy … (more)

[Sarah Waldeck, JOTWELL, 19 January]

Adam Hirsch, ‘Inheritance on the Fringes of Marriage’

This Article explores the inheritance rights of individuals situated at the fringes of marital relationships – fiancés, spouses who are in the process of divorcing, and permanently separated spouses. The Article examines whether these categories of individuals ought to enjoy rights to forced shares of an estate comparable to those that ordinary spouses can claim by assaying the rationales for a forced share in relation to these fringe categories. The Article also considers whether lawmakers should infer that the typical decedent would wish to provide at death for individuals falling into these categories. The Article conducts the first-ever empirical study of this question by recourse to an internet survey of fiancés, spouses in the midst of divorcing, and permanently separated spouses. The Article proposes changes in intestacy law, the law of implied bequests, and implied revocation of be-quests on the basis of this survey. Finally, the Article seeks to locate the issue of fringe categories of beneficiaries within the broader context of relationship theory.

Hirsch, Adam J, Inheritance on the Fringes of Marriage (January 11, 2018). University of Illinois Law Review, forthcoming.

Christoph Engel, ‘The Proper Scope of Behavioral Law and Economics’

Behavioral law and economics applies the conceptual tools of behavioral economics to the analysis of legal problems and legal intervention. These models, and the experiments to test them, assume an institution free state of nature. In modern societies, the law’s subjects never see this state of nature. However, a rich arrangement of informal and formal institutions creates generalized trust. If individuals are sufficiently confident that nothing too bad will happen, they are freed up to interact with strangers as if they were in a state of nature. This willingness dramatically reduces transaction cost and enables division of labor. If generalized trust can be assumed, simple economic models are appropriate. But they must be behavioral, since otherwise individuals would not want to run the risk of interaction.

Engel, Christoph, The Proper Scope of Behavioral Law and Economics (January 2018). MPI Collective Goods Preprint, No 2018/2.

Erik Encarnacion, ‘Contract as Commodified Promise’

Many scholars assume that lawmakers should design contract law with the goal of facilitating commercial promises. But the question of which promises count as commercial remains neglected. This Article argues that this question matters more than one might initially expect. Once we understand commerciality in terms of commodification – roughly, treating something as subject to market norms – surprising recommendations for reform follow. First, if contract law should enforce commodified promises, we should demote the consideration doctrine to a presumption of enforceability rather than a formal requirement. Second, we should adopt a rule, contrary to current doctrine in most jurisdictions in the United States, that intending to make a promise legally binding renders it presumptively enforceable. Beyond these reforms, understanding contracts as commodified promises also provides a new lens through which to view recurring debates about boilerplate, enforcing donative promises, remedies, and efficient breaches. We can even understand the 2008 financial crisis as caused in part by over-commodifying promises. In short, this Article shows how debates about the moral limits of markets, which might have seemed peripheral to contract theory, belong at its very core.

Erik Encarnacion, Contract as Commodified Promise, 71 Vanderbilt Law Review 61 (2018).

Yonathan Arbel, ‘Adminization: Gatekeeping Consumer Contracts’

Large companies and debt collectors frequently file unmeritorious claims against consumers. Recent high-profile actions brought by the Consumer Financial Protection Bureau against JP Morgan, Citibank, and other large debt collectors illustrate the breadth and importance of this phenomenon. Due to the limited financial power of individuals, consumers often do not defend against such baseless claims, which results in the entry of millions of default judgments every year. To combat this problem, policymakers and scholars have explored a variety of court-based solutions that would make it easier for consumers to defend in court, but these prove ineffectual.

To solve the problem of unmeritorious claiming, this Article proposes a budget-friendly solution called ‘Adminization’. This novel approach uses an administrative agency as a gatekeeper to civil litigation that is tasked with detecting and sanctioning the filing of baseless claims. The agency samples cases, using statistical methods and potentially deep-learning algorithms, and then investigates selected cases using agency auditors. When the auditors find wrongdoing, they are instructed to levy large fines against wrongdoers. Unlike the current system, Adminization subjects every plaintiff to the risk of thorough investigation and large fines, thus undercutting the financial incentive to engage in wrongful behavior. The importance of Adminization lies in its cost-effectiveness, practicality, and political feasibility relative to the court-based approaches that dominate the discussion today.

Yonathan A Arbel, Adminization: Gatekeeping Consumer Contracts, 71 Vanderbilt Law Review 121 (2018).