Kit Barker, ‘“Damages Without Loss”: Can Hohfeld Help?’

This article addresses a still unsolved puzzle in private law regarding the proper explanation of cases in which courts make substantial awards of damages to claimants whose rights have been infringed, but who appear to have suffered no factual loss in consequence of the infringement. The paradigm examples tend to involve awards of ‘user’, license fee or ‘hypothetical bargain’ damages in cases involving interference with property rights. It suggests that existing explanations of such cases are all unsatisfactory in one or another respect and posits a new and potentially more powerful explanatory thesis, drawing on Hohfeld. Such awards, it argues, compensate right-holders for the loss of legal powers associated with their primary claim-rights — in particular, the loss of powers they are accorded by the law to ‘prevent’ the infringement of certain types of primary claim right ex ante. Legal powers are thus to be regarded as assets or amenities, the loss of which is amenable to monetary compensation.

Kit Barker, ‘Damages Without Loss’: Can Hohfeld Help?, Oxford Journal of Legal Studies (Winter 2014) 34(4): 631-658, doi: 10.1093/ojls/gqu012.

Clark and Nolan, ‘A Critique of Chester v Afshar

Our aim in this article is to provide a counterbalance to the substantial body of academic opinion supportive of the decision in the medical non-disclosure case of Chester v Afshar [2004] UKHL 41, [2005] 1 AC 134, while at the same time identifying some misconceptions that have arisen about the case. Our critique is consistent with the reasoning of the High Court of Australia in its recent decision in Wallace v Kam [2013] HCA 19, (2013) 87 ALJR 648. The article is divided into three sections. In the first section, we argue that the decision in Chester was a departure from orthodox negligence principles. In the second section, we critically examine the autonomy-based justification the majority in Chester gave for departing from those principles. And in the third section we consider a number of alternative ways in which protection could be given to the autonomy interests at stake in medical non-disclosure cases. Several more general points relating to the autonomy concept and the scope of liability doctrine in negligence law emerge from our critique. Our analysis also suggests that negligence law is ill-suited to the task of providing an appropriate legal solution to the problem of medical non-disclosure.

Tamsyn Clark and Donal Nolan, A Critique of Chester v Afshar. Oxford Journal of  Legal Studies (Winter 2014) 34(4): 659-692, doi: 10.1093/ojls/gqu019.

Marc Moore, ‘Private Ordering and Public Policy: The Paradoxical Foundations of Corporate Contractarianism’

This article critically examines the dominant contractarian theory of the firm, and the extent to which its main descriptive propositions are actually manifested within the UK’s legal framework of corporate governance today. The article’s doctrinal analysis is focussed on those principles and rules that together determine the division of decision-making power at the heart of the corporate structure, especially the longstanding contractual principle that underpins both the practical enforceability and normative character of the corporate constitution. The article highlights how the widespread existence of mandatory rules within the UK corporate governance system represents a major empirical aberration to contractarianism’s flexible, private-ordering paradigm of law. It furthermore demonstrates that, while contractarianism attempts to rationalize mandatory rules as being ultimately consistent with a quasi-contractual theory of rule selection, those explanations are either inappropriate to the UK’s law-making environment or else plagued by inherent and self-defeating contradiction. On this basis, the article concludes that contractarian logic is on its own incapable of legitimizing the core legal features of UK corporate governance, and in particular the controversial normative principle of shareholder exclusivity. It accordingly identifies the need to develop a defensible public policy justification for shareholder exclusivity based on public-democratic, as opposed to private-contractual, rationality.

Marc T Moore, Private Ordering and Public Policy: The Paradoxical Foundations of Corporate Contractarianism. Oxford Journal of Legal Studies (Winter 2014) 34(4): 693-728, doi: 10.1093/ojls/gqu006.

‘When is Sexual Abuse Within the Scope of Employment?’

Martha Chamallas, Vicarious Liability in Torts: The Sex Exception, 48 Valparaiso University Law Review 133 (2013), available at SSRN. Martha Chamallas’s Monsanto Lecture, Vicarious Liability in Torts: The Sex Exception, is timely and important, inviting renewed scholarly attention to the oft-neglected topic of vicarious liability. Since the 1990s, courts have faced a steady stream of suits brought against schools, hospitals, religious institutions, and other entities for sexual abuse committed by employees. In addressing these suits, Chamallas argues, courts have adopted an unjustifiably narrow approach to vicarious liability … (more)

[John Goldberg, JOTWELL, 21 November]

Dagan and Dorfman, ‘The Justice of Private Law’

Private law is traditionally conceptualized around a commitment to formal freedom and equality, whereas critics of the public/private distinction (including lawyer-economists) construe it as merely one form of regulation. We criticize the traditional position as conceptually misguided and normatively disappointing. But we also reject the conventional criticism, which confuses a justified rejection of private law libertarianism with a wholesale dismissal of the idea of a private law, thus threatening to deny private law’s inherent value.

This Article seeks to break the impasse between these two positions by offering an innovative account of the justice that should, and to some extent already does, underlie the law of interpersonal interactions among private individuals in a liberal state. Rather than succumbing to the unappealing adherence to formal freedom and equality, private law should openly embrace the liberal commitments to self-determination and substantive equality. A liberal private law — our private law — establishes frameworks of respectful interaction conducive to self-determining individuals, which are indispensable for a society where individuals recognize each other as genuinely free and equal agents.

Dagan, Hanoch and Dorfman, Avihay, The Justice of Private Law (November 19, 2014).

Sujitha Subramanian, ‘The changing dynamics of the global intellectual property legal order: emergence of a “network agenda”?’

The Anti-Counterfeiting Trade Agreement (ACTA) had sought to augment intellectual property (IP) enforcement practices, to counter the proliferation of counterfeit and pirate goods and to regulate digital infringements. This paper examines the collapse of ACTA and challenges the traditional orientation of the debate concerning the tension between the ‘enforcement’ and ‘development’ agendas. The ACTA negotiating partners, mainly developed states, created a forum outside the aegis of international IP norm-making bodies to avoid the distractions posed by developing countries whilst promoting an alternative ‘enforcement agenda’. Despite this effort, ACTA collapsed from ‘within’. The paper argues that ACTA failed due to the extemporaneous emergence of a random configuration of civil society groups, academics, ‘netizens’ and legislators within ACTA negotiating countries independently pursuing an agenda that can be called the ‘network agenda’. This new agenda aimed to protect the right to privacy, data protection and freedom of speech within the digital medium. While current debates on the global IP legal order are generally limited to, and characterised by the Global North-South considerations, the ‘network agenda’ cuts longitudinally through territorial configurations and squarely places the interests of the IP owner against those of the public. Consequently, the paper highlights the potential of the network agenda to dilute the existing polarities in the IP debate and impact on the dynamics of international intellectual property law by creating an inclusive platform within IP discourse that attempts to integrate colliding rationalities present within the world society.

Sujitha Subramanian, The changing dynamics of the global intellectual property legal order: emergence of a ‘network agenda’? International and Comparative Law Quarterly, DOI:, 37 pages. Published online: 20 November 2014.

Call for Papers: ABA – IPL Intellectual Property Law Scholarship Symposium Wednesday, 25 March 2015, North Bethesda, MD

The American Bar Association Section of Intellectual Property Law is pleased to host its second annual Intellectual Property Law Scholarship Symposium during the ABA-IPL Section’s 30th Annual Intellectual Property Law Conference, March 25-27, 2015, at the Bethesda North Marriott Hotel and Conference Center in North Bethesda, MD. The Symposium will take place on Wednesday, March 25, 2015 from 3:00 pm-4:30 pm as part of the conference’s Professional Practice Day … (more)

‘Dutch draft bill on collective action for compensation – a note on extraterritorial application’

“As many readers will know, the Dutch collective settlement scheme – laid down in the Dutch collective settlement act (Wet collective afhandeling massaschade, WCAM) – has attracted a lot of international attention in recent years as a result of several global settlements, including those in the Shell and Converium securities cases. Once the Amsterdam Court of Appeal (that has exclusive competence in these cases) declares the settlement binding, it binds all interested parties, except those beneficiaries that have exercised the right to opt-out …” (more)

[Xandra Kramer, Conflict of Laws .net, 20 November]

Geoffrey Miller, ‘Empirical Analysis of Legal Theory’

Empirical analysis of dispute resolution terms in commercial contracts provides information about theoretical issues in contract law. These clauses are adopted at a time when the parties share an interest in maximizing the value of the contract. The analyst can examine the pattern of contracting behavior and infer that the choices made by sophisticated parties will tend to represent efficient arrangements.

Miller, Geoffrey P, Empirical Analysis of Legal Theory (November 18, 2014). NYU Law and Economics Research Paper No 14-35.

Richard Huxtable, ‘Autonomy, Best Interests and The Public Interest: Treatment, Non-Treatment and the Values of Medical Law’

When constructing its responses to cases concerning the treatment and non-treatment of patients, both competent and incompetent, English medical law primarily uses two analytic tools: the autonomy and the welfare (or best interests) of the patient. I argue, however, that the construction going on behind the facade involves the use of more — and more precise — tools. In such cases, the law effectively asks three questions. The first, autonomy, question asks: is the proposed course desired by the patient? The second, best interests, question asks: if the patient is not autonomous, then (what) is the proposed course in the patient’s best interests? And the third, public interest, question asks: whether or not the patient is autonomous, is the proposed course in the public interest? In its responses to each question, law then offers three different answers, which reveal a plurality of ethical commitments. Thus, the wishes of the (autonomous) patient might reflect her current, her best, or her ideal desires. The best interests of the (non-autonomous) patient, meanwhile, are variously articulated in terms of (again) her desires, or the promotion or preservation of a particular mental state, or the attainment of certain objective goods. Finally, and most often obscured from view, there are public interest concerns — with the interests of the patient, some other (or others), or even the community at large. In identifying these different questions and answers, I hope to provide an explanatory typology. Whether law’s plurality of answers — and values — is appropriate, however, remains open to question.

Richard Huxtable, Autonomy, Best Interests And The Public Interest: Treatment, Non-Treatment And The Values Of Medical Law. Medical Law Review (Autumn 2014), 22(4): 459-493, doi: 10.1093/medlaw/fwt035.