Author Archives: Steve Hedley

Thomas Nachbar, ‘Twenty-First Century Formalism’

ABSTRACT Formalism is one of the most widely applied but misunderstood features of law. Embroiled in a series of conflicts over the course of the twentieth century, formalism’s meaning has become confused as formalism has been enlisted by both proponents and opponents of specific legal methodologies. For some, it has simply become an epithet used […]

Spitz and Penalver, ‘Nature’s Personhood and Property’s Virtues’

ABSTRACT In The Colorado River Ecosystem v State of Colorado, plaintiff asked a federal district court to find that the Colorado River ecosystem is a legal person, arguing that, ‘[t]he dominance of a culture that defines nature as property enables its destruction’. Plaintiff’s principal claim rested on the assumption that legal personality could do something […]

Dan Awrey, ‘Bad Money’

ABSTRACT Money is, always and everywhere, a legal phenomenon. In the United States, the vast majority of the money supply consists of monetary liabilities – contractually enforceable promises – issued by commercial banks and money market funds. These private financial institutions are subject to highly sophisticated public regulatory frameworks designed, in part, to enhance the […]

Ben Chen, ‘Elder Financial Abuse: Fiduciary Law and Economics’

ABSTRACT As baby boomers in the United States enter retirement with a high life expectancy, courts and legislatures are increasingly pressed to resolve disputes over the properties of the elderly. Empirical studies suggest that financial abuse against the elderly is hard to detect and likely prevalent. Those who manage property for the elderly may have […]

Tatiana Cutts, ‘Materially Identical to Mistaken Payment’

ABSTRACT Mistaken payment is the ‘core case’ of unjust enrichment, and it has had a powerful effect on the development of this area of private law. For Peter Birks, unjust enrichment was simply ‘the law of all events materially identical to mistaken payment’ – to be shaped through a process of abstraction from that core […]

Zhong Xing Tan, ‘The Proportionality Puzzle in Contract Law: A Challenge for Private Law Theory?’

ABSTRACT This article explores the emerging use of the proportionality concept in the contract law of the Anglo-common law world, first to understand its internal logic, and secondly, to situate its invocation within private law theory. What are judges doing when they appeal to ‘proportionality’?, and what does this say about the ideology of adjudication? […]

Andy Yu, ‘Equity and Homelessness’

ABSTRACT I argue that homelessness calls for equitable intervention. The motivation for such intervention involves the state’s provision of the system of property rights. This will be one that is responsible for but can also solve homelessness. The nature of the equitable interest responds to this motivation. There is a negative equitable right for the […]

Gemma Turton, ‘Causation and Risk in Negligence and Human Rights Law’

INTRODUCTION … The paper begins, in Section II, by elucidating the causal requirements and the function of causation within each area of law. It is beyond the scope of this paper to address all of the ECHR rights, so the focus is on Articles 2 and 3, and, in the final section Article 8, which […]

‘Regulatory divergence post Brexit: Copyright law as an indicator for what is to come’

“Here we have it. The first instance of regulatory divergence. The UK is leaving the European Union, and already the rules of the single market are starting to break. In response to a parliamentary question by Labour MP Jo Stevens, then-Intellectual Property Minister Chris Skidmore said on 21 January that the UK Government had no […]

Bernard Wessels, ‘Legal and public policy considerations that justify legislative development of the law of delict’

ABSTRACT An evaluation of the different ways in which the South African legal system currently provides compensation for crime victims suggests that an alternative form of crime victim compensation should be considered. The most common solution adopted in foreign jurisdictions is the enactment of a statutory crime victim compensation scheme. The crucial question is whether […]