Author Archives: Steve Hedley

‘Legal Theory Lexicon: Positive and Normative Legal Theory’

“One of the most fundamental distinctions in legal theory is that between ‘positive legal theory’ and ‘normative legal theory’. This post provides a very brief introduction to the distinction, aimed at law students (especially first years) with an interest in legal theory. The core idea of the distinction between positive and normative legal theory is […]

‘Continued Utility of Privacy Class Actions in Deterrence’

“Several years ago, I covered in the Western Journal of Legal Studies the emergence of class actions as a viable mechanism to promote privacy interests in the public. Central to this promise was the inability of statutory remedies to provide any meaningful deterrence against these breaches …” (more) [Omar Ha-Redeye, Slaw, 21 July]

Dubravka Klasiček, ‘21st Century Wills’

ABSTRACT Wills are formal legal affairs that must satisfy strict prerequisites in order to be valid. Otherwise, they will be either automatically null or voidable. The rules pertaining to the form of wills have always been strict and have required wills to be made in a certain way. It is said that the amplified formalism […]

Adam Reilly, ‘Is the “Mere Equity” to Rescind a Legal Power? Unpacking Hohfeld’s Concept of “Volitional Control”’

ABSTRACT Private lawyers owe a particular debt of gratitude to Hohfeld, given their widespread use of his scheme. An example is equitable rescission, where the entitlement to rescind a voidable transfer is now widely understood to be a Hohfeldian legal power. Yet, though scholars have been quick to use Hohfeld’s concept of legal power, they […]

‘Freedom, Choice and Contracts’: Theoretical Inquiries in Law volume 20, no 2 (2019)

Introduction (Alon Jasper, Alon Abramovich and Sama Haddad) Contract as Promise: Lessons Learned (Charles Fried) Contract Law and the Liberalism of Fear (Nathan B Oman) Contract Law in a Just Society (Yitzhak Benbaji) Voluntary Obligation and Contract (Aditi Bagchi) Parol Evidence Rules and the Mechanics of Choice (Gregory Klass) On the Optimal Number of Contract […]

Michael Da Silva, ‘Correlativity and the Case Against a Common Presumption About the Structure of Rights’

INTRODUCTION In its most basic form, a ‘right’ is an entitlement to performance of an action by an individual that grounds a further entitlement to censure that individual absent performance. While debates about what rights seek to protect (eg, interests or choices to demand performance of acts that may not be in our interest) and/or […]

Daniel Gervais, ‘Exploring the Interfaces Between Big Data and Intellectual Property Law’

ABSTRACT This article reviews the application of several IP rights (copyright, patent, sui generis database right, data exclusivity and trade secret) to Big Data. Beyond the protection of software used to collect and process Big Data corpora, copyright’s traditional role is challenged by the relatively unstructured nature of the non-relational (noSQL) databases typical of Big […]

CRG Murray, ‘Back to the Future: Tort’s Capacity to Remedy Historic Human Rights Abuses’

INTRODUCTION … Kenya became independent in 1963 and the violent colonial-era conflict receded from public memory, in the UK at least. Any subsequent attempts to challenge the Crown’s conduct during the colonial era in Kenya’s courts would have faced the insurmountable obstacle of state immunity. There thus appeared to be no viable route to redress […]

‘Has the Cat Got Your Copyright? The dilemma of animal-created works’

“Creative works made by animals and discussions on their copyright ownership have frequently featured on the IPKat, be it Ella, the extensively covered selfie-taking black macaque, or the animal orchestra and its related questions of copyright ownership. Noting the increasing attention paid to animal-created works, we consider whether such creations can and should be folded […]

Scott Donald, ‘The Pension Trust: Fit For Purpose?’

ABSTRACT The law of trusts plays an integral and multi‐faceted role in the regulatory scheme shaping the occupational pensions arena in Australia and the United Kingdom. It facilitates the operation of private law modalities, such as innovation and competition. However, that openness also renders members’ interests vulnerable and the lack of transparency and emaciated accountability […]