Claire Lim, ‘Media Influence on Courts: Evidence from Civil Case Adjudication’

This paper quantitatively assesses media influence on civil case adjudication in US state courts. It shows that media influence substantially mitigates disparity in damage awards across political orientation of districts. That is, in areas with frequent newspaper coverage of courts, there is little difference in damage awards between conservative and liberal districts. In contrast, in areas with little newspaper coverage, liberal districts tend to grant substantially larger damage awards than do conservative ones. This result suggests that the presence of active media coverage may enhance consistency in the civil justice system.

Claire Lim, Media Influence on Courts: Evidence from Civil Case Adjudication. American Law and Economics Review (2015), doi: 10.1093/aler/ahv005. First published online: March 26, 2015.

Barker and Steele, ‘Drifting Towards Proportionate Liability: Ethics and Pragmatics’

This article investigates an apparent, convergent shift in common law jurisdictions away from the traditional principle of joint and several liability towards proportionate liability in cases involving multiple wrongdoers, and argues that this is best seen as an unprincipled drift. The shift is often presented by defendants and legislators as a logical extension of the ethics of comparative (contributory) negligence doctrine. Here we deny any ethical connection between the two doctrines. We also suggest that there is no good, generalisable ethical or pragmatic argument in favour of proportionate liability in its own right and caution jurisdictions currently considering reform of the joint and several liability rule against leaping to any such assumption.

Kit Barker and Jenny Steele, Drifting Towards Proportionate Liability: Ethics And Pragmatics. Cambridge Law Journal / Volume 74 / Issue 1 / March 2015, pp 49-77. DOI:, Published online: 26 March 2015.

Jonathan Morgan, ‘Liability for Independent Contractors in Contract and Tort: Duties To Ensure That Care Is Taken’

Liability for independent contractors generally poses few difficulties in the law of contract, whereas in tort it is a vexed question. The difficulties are only compounded by the governing concept: the so-called ‘non-delegable duty’. This article explains the differences and argues that no easy parallels can be drawn from the contractual position to answer the riddles in tort. Neither does ‘assumption of responsibility’ help. There is undoubtedly a case for recognising vicarious liability for independent contractors when businesses and public bodies alike now outsource so many of their functions. This issue needs to be confronted squarely, not through unconvincing contractual analogies.

Jonathan Morgan, Liability For Independent Contractors In Contract And Tort: Duties To Ensure That Care Is Taken. Cambridge Law Journal / Volume 74 / Issue 1 / March 2015, pp 109-139. DOI:, Published online: 26 March 2015.

Luiz Gustavo Meira Moser, ‘Parties’ preferences in international sales contracts: an empirical analysis of the choice of law’

This article is intended to offer insights into parties’ analytical reasoning while negotiating and choosing a governing law in international sales contracts. It will present a particular focus on the cost-benefit analysis exercised by contracting parties, noting the advanced precautions taken and strategies involved in these cross-border contracts. By presenting and exploring the results of a global survey on the choice of law and its empirical relevance, the article investigates the market distortions to which parties are exposed through an international perspective and sheds light on the various measures and alternatives to tackle these failures. In conclusion, the article aims to elucidate what is involved for parties in reaching mutually beneficial contracts.

Luiz Gustavo Meira Moser, Parties’ preferences in international sales contracts: an empirical analysis of the choice of law. Uniform Law Review (2015), doi: 10.1093/ulr/unv008. First published online: March 25, 2015.

Hans-Wolfgand Micklitz, ‘On the intellectual history of freedom of contract and regulation’

Are we, private lawyers and contract lawyers, not convinced that we share a common understanding of freedom of contract, of ‘freedom’, of ‘contract’, and of the restriction of freedom of contract through ‘regulation’? Is this common understanding not the basis on which we all operate – implicitly or explicitly – in our intellectual discourse while cutting across different legal traditions and different legal cultures? I argue that this common understanding is no more than a rather superficial ‘gentleman’s agreement’ which allows us to communicate with each other whilst maintaining our own preconceptions. In fact, there are different models of freedom of contract and regulation in Germany, France, the UK and the European legal order, each deeply ingrained in their respective intellectual history.

Hans-Wolfgang Micklitz, On the intellectual history of freedom of contract and regulation. EUI LAW, 2015/09; European Regulatory Private Law Project (ERPL-12) (2015).

Dari-Mattiacci and Guerriero, ‘Law and Culture: A Theory of Comparative Variation in Bona Fide Purchase Rules’

A key question in comparative law is why different legal systems provide different legal solutions for the same problem. To answer this question, we use novel comparative evidence on how the conflict between the dispossessed original owner and the bona fide purchaser of a stolen good is resolved in different countries. This is the most primitive manifestation of a fundamental legal choice: the balance between the protection of the owner’s property rights and the enhancement of the buyer’s reliance on contracts. We test four prominent theories: functional equivalence, legal origins, political economics and cultural economics. We find that a culture of self-reliance is the key determinant of comparative variation in this area of law.

Giuseppe Dari-Mattiacci and Carmine Guerriero, Law and Culture: A Theory of Comparative Variation in Bona Fide Purchase Rules. Oxford Journal of Legal Studies (2015), doi: 10.1093/ojls/gqv004. First published online: March 22, 2015.

Heikki Pihlajamäki, ‘Private Law Codification, Modernization and Nationalism: A View from Critical Legal History’

Private law codification is not as indispensable to continental legal culture as standard legal histories would have us believe. Law was modernizing roughly at the same time, and in the same way, in Western countries that did not codify private law, including the common law world and Scandinavia. This suggests a connection between the legal history of regions with and without codification; in this exercise in critical legal history, I argue that the engine driving the modernization of Western law has been legal scholarship, not legislators and their codes. Moreover, the idea of a European civil code may struggle today at least partly because the civil code never had the monopoly over European legal development standard legal histories have assigned to it. The article thus illustrates the relationship between comparative legal history and critical legal history; critical legal history may not be comparative by definition, but it almost always is comparative in fact, at least in the broad sense of comparative legal history exemplified here.

Heikki Pihlajamäki, Private Law Codification, Modernization and Nationalism: A View from Critical Legal History. Critical Analysis of Law Vol 2, No 1 (2015).

Catharine MacMillan, ‘The mystery of privity: Grand Trunk Railway Company of Canada v Robinson (1915)’

This article examines a little known decision of the Judicial Committee of the Privy Council: Grand Trunk Railway Company of Canada v Robinson (1915). The examination is historical and it provides a different insight into the understanding of privity of contract, a doctrine central to contract law. The examination reveals a process of trans-Atlantic legal migration in which English law was applied to resolve an Ontario case. The nature of the resolution is surprising because it appears to conflict with the better known decision of the House of Lords, Dunlop Pneumatic Tyre Company, Limited v Selfridge and Company, Limited, which a similarly constituted panel delivered in the same week. This article argues that there was a greater malleability in the resolution of cases concerned with privity than was thought to have existed. It is also argued that the power of Canadian railway capitalism is a significant factor in understanding the legal resolution of the case. Finally, the article considers the use of English and American precedents relevant to the case. The application of English precedents to the case led to a resolution not entirely befitting Canadian conditions.

Catharine MacMillan, The mystery of privity: Grand Trunk Railway Company of Canada v Robinson (1915). University of Toronto Law Journal, Volume 65, Number 2 /2015, 1-36. DOI 10.3138/UTLJ.2775. Online Date Tuesday, March 24, 2015.

Samuel Beswick, ‘ “Losses in Any Event” in the Case of Damage to Property’

In several relatively recent decisions, the House of Lords and the Court of Appeal have declared, relying on a series of early 20th century admiralty cases, that the occurrence of supervening events is irrelevant to the determination of damages for negligent injury to property. The principle has been described as ‘a firm sub-rule’ that applies to cases of property damage but not to other categories of loss. This paper, conversely, contends that the proper and consistent position in law is that a court tasked with assessing damages for property injury should take into account the impact of relevant supervening events. It asserts that the more recent decisions of the courts have misconstrued the early precedents, confused facially similar but factually distinct categories of cases, and fashioned an exceptional sub-rule that is inconsistent with broader principles of the common law of damages. ‘Losses in any event’ are relevant to the measure of loss in cases of damaged property. It is therefore proposed that the presumed sub-rule be discarded and the relevance of subsequent events acknowledged.

Samuel Beswick, ‘Losses in Any Event’ in the Case of Damage to Property. Oxford Journal of Legal Studies (2015), doi: 10.1093/ojls/gqv009. First published online: March 24, 2015.

Orly Lobel, ‘The New Cognitive Property: Human Capital Law and the Reach of Intellectual Property’

Contemporary law is expanding into the area of ‘cognitive property’, leading to the commodification of intellectual intangibles, including human capital. In this Article, Professor Lobel explores this phenomenon, focusing on the the increase in trade secret protection and the so-called ‘talent wars’. She uncovers the harms of this new cognitive property and analyzes these effects through the lens of new economic research about endogenous growth, labor-market search, and innovation networks. She argues that this rise in cognitive controls should be understood as the Third Enclosure Movement, which propertizes the intangibles of the human mind and stifles potential innovations.

Orly Lobel, The New Cognitive Property: Human Capital Law and the Reach of Intellectual Property. 93 Texas Law Review 789 (2015).