Monthly Archives: March, 2017

‘Two new books: European private law as a national discipline’

The international character of European private law is one of the reasons why I have always been attracted to this field. Like legal history and philosophy of law, European private law is an academic discipline practiced by academics from a wide range of different countries together making up a vibrant academic community. In law, this […]

Betts and Jaep, ‘The Dawn of Fully Automated Contract Drafting: Machine Learning Breathes New Life Into a Decades-Old Promise’

Abstract: Technological advances within contract drafting software have seemingly plateaued. Despite the decades-long hopes and promises of many commentators, critics doubt this technology will ever fully automate the drafting process. But, while there has been a lack of innovation in contract drafting software, technological advances have continued to improve contract review and analysis programs. ‘Machine […]

Goudkamp and Nolan, ‘Contributory Negligence on Appeal’

Abstract: Contributory negligence is a private law doctrine of considerable practical importance, and trial court decisions applying the doctrine are frequently the subject of appeals. In this article, we report the key findings of an empirical study of the operation of the contributory negligence doctrine in the Court of Appeal. A fuller report of the […]

James Pfander, ‘Constitutional Torts and the War on Terror’

Abstract: This book explores the response of the federal courts to Bivens claims brought to secure remedies for torture and other human rights abuses that were committed in connection with the Bush Administration’s war on terror. It finds that such claims have been almost universally rejected, on one basis or another. Indeed, while some claims […]

Polinsky and Shavell, ‘Subrogation and the Theory of Insurance When Suits Can Be Brought for Losses Suffered’

Abstract: The theory of insurance is considered here when an insured individual may be able to sue another party for the losses that the insured suffered — and thus when an insured has a potential source of compensation in addition to insurance coverage. Insurance policies reflect this possibility through so-called subrogation provisions that give insurers […]

Adam Mossoff, ‘Trademark as a Property Right’

Abstract: Although trademark is a property right, the conventional wisdom among modern commentators and prominent judges is that it is only a regulatory entitlement that promotes consumer welfare. This essay fills a lacuna in modern trademark theory by identifying how and why nineteenth-century courts first defined trademark as a property right, and how this explains […]

‘Is It Time to Examine the Concept of Originality in Musical Works?’

Emma Steel, Original Sin: Reconciling Originality in Copyright with Music as an Evolutionary Art Form, 37 European Intellectual Property Review 66 (2015). Copyright often makes little sense, particularly when you explain it to people who are not familiar with its concepts. Jessica Litman expresses this problem well in her book Digital Copyright by stating that […]

de Costa and Tam, ‘Liability for providing a prognosis in surgical practice’

Abstract: The common law’s development of the doctrine of informed consent has progressively imposed broader obligations on surgeons to provide patients with information about the surgical and alternative treatment choices available. Prognosis is critical because the patient cannot provide informed consent without information about the likely evolution of the physiological or pathological processes involved in […]

Elizabeth Rosenblatt, ‘The Great Game and the Copyright Villain’

Abstract: This essay explores the reactions of Sherlock Holmes fans and enthusiasts to assertions of intellectual property ownership and infringement by putative rights holders in two eras of Sherlockian history. In both the 1946-47 and 2013-15 eras, Sherlock Holmes devotees villainized the entities claiming ownership of intellectual property in Holmes, distancing those entities from Sir […]

Cristina Carmody Tilley, ‘Tort Law Inside Out’

Abstract: For more than a century, scholars have been looking at tort law from the outside in. Theorists committed to external goals like efficient allocation of resources or moral justice have treated tort as a mere vehicle for the achievement of their policy preferences, rather than as a body of law with a discernible internal […]