Author Archives: Steve Hedley

Morrisons triumphs in the Supreme Court

“As we all adjust to the strange new reality ushered in by the arrival of Covid-19, it is reassuring to see that the wheels of the justice system continue to turn, and at the highest levels. Today the Supreme Court has handed down its judgment in one of the most watched data protection and employment […]

Samantha Godwin, ‘Children’s Capacities and Paternalism’

ABSTRACT Paternalism is widely viewed as presumptively justifiable for children but morally problematic for adults. The standard explanation for this distinction is that children lack capacities relevant to the justifiability of paternalism. I argue that this explanation is more difficult to defend than typically assumed. If paternalism is often justified when needed to keep children […]

Shivprasad Swaminathan, ‘What the Centipede Knows: Polycentricity and “Theory” for Common Lawyers’

ABSTRACT For Michael Polanyi, ‘polycentricity’ was a method of decision making – of which he saw the common law as a prime exemplar – where numerous decision makers mutually adjust their decisions to their expectations of what will pass muster with the community of decision makers, without the use of any common blueprint. This article […]

Hans-W Micklitz, ‘The digital economy, digital society, and private law’

ABSTRACT This essay is about the ways the legislator in Europe, in particular the EU and the German legislator, and the community of lawyers at large over the last 100 years have approached the systemic legal problems raised by fundamental societal changes, such as industrialization of production, the consumer movement, and, recently, the digitization of […]

Kahn and Lopatka, ‘Res Ipsa Loquitur: Reducing Confusion or Creating Bias?’

ABSTRACT The so-called doctrine of res ipsa loquitur has been a mystery since its birth more than a century ago. This Article helps solve the mystery. In practical effect, res ipsa loquitur, though usually thought of as a tort doctrine, functions as a rule of trial practice that allows jurors to rely upon circumstantial evidence […]

Meyers and Hersch, ‘Employment Practices Liability Insurance and Ex Post Moral Hazard’

ABSTRACT Employment Practices Liability Insurance (EPLI) is a form of insurance that protects employers from claims of discrimination, harassment, retaliation, and wrongful termination. EPLI contracts as currently written often do not exclude intentional actions or payment of punitive damages, creating potentially severe moral hazard problems. We propose potential alterations that would hold employers accountable for […]

Clark Asay, ‘Rethinking Copyright Harmonization’

ABSTRACT For nearly half a century, the United States has been one of the main proponents of harmonizing the world’s copyright laws. To that end, the US government has worked diligently to persuade (and, in some cases, bully) most of the world’s countries to adopt copyright standards that resemble those found in the US. The […]

Simon Stern, ‘Legal Fictions and Legal Fabrication’

ABSTRACT This chapter examines two of the most influential theories of legal fictions, suggesting that neither one explains the distinctive features that doctrines such as corporate personhood, coverture, and civil death have in common. The chapter first examines Henry Sumner Maine’s theory; although his account is often quoted, it has received comparatively little scholarly attention. […]

Chantal Mak, ‘Reflections on Transformative Private Law’

What is the meaning of ‘transformative private law’? Or what does membership of a research group that has chosen this name entail? Here are some reflections of a member of the newly launched Amsterdam Centre for Transformative Private Law (ACT), formerly known as the Centre for the Study of European Contract Law (CSECL). Following up […]

Stephen Daly, ‘The Aberrant Tort of Lawful Means Conspiracy?’

INTRODUCTION The lawful means conspiracy tort provides an actionable claim where two (or more) parties combine to engage in a lawful activity, but do so with the predominant purpose of harming the claimant, and in fact do so harm. It is a strange tort, in that it renders unlawful because of a combination that which […]