Monthly Archives: June, 2019

‘Little Clicks, Big Consequences’

Brett Frischmann and Evan Selinger, Re-Engineering Humanity (2018). The unique qualities of digital contracts – weightless, easily duplicable – have made them ubiquitous and much longer than their paper counterparts. Consequently, they are everywhere and accordingly, nobody reads them. Yet, courts have consistently argued that digital or ‘wrap’ contracts (shrinkwrap, clickwrap, browsewrap, etc) are just […]

Eric Alston, ‘Private Ordering as the Foundation for Frontier Law’

ABSTRACT Legal transitions are by definition costly, and are salient in frontier contexts where a public legal authority is imposed for the first time. Such transitions illuminate likely economic and legal outcomes as a function of the heterogeneity of resource users and substantive relationships between private and public systems of ordering. I develop these insights […]

Julian Jonker, ‘Contractualist Justification and the Direction of a Duty’

ABSTRACT To whom is a duty owed? Contractualism answers with an interest theory of direction. As such, it faces three challenges. The Conceptual Challenge requires acknowledgment that a duty is conceptually distinct from an interest. The Extensional Challenge requires an account of cases in which one who is owed a duty does not take an […]

Ellen Gordon-Bouvier, ‘Crossing the boundaries of the home: a chronotopical analysis of the legal status of women’s domestic work’

ABSTRACT Women’s domestic work is largely deemed to be a ‘labour of love’ and lacking any value outside the private family. This reflects an ‘ideology of domesticity’, whereby women’s natural place is deemed to be in an imagined private sphere. In this paper, I examine the status of housework in the context of asserting property […]

Ying Khai Liew, ‘“Sham Trusts” and Ascertaining Intentions to Create a Trust’

ABSTRACT According to received wisdom, ‘sham trusts’ is a doctrine which provides an exception to the normal objective process of ascertaining intentions to create a trust by permitting courts to give effect to subjective intentions as the ‘true’ intention. This article makes three points. First, that approach does not properly reflect how courts deal with […]

Special Issue of Statute Law Review on Adjudication

Special Issue on Adjudication: What Gives Meaning to Statutory Rules and Constitutional Provisions? (Christopher Walshaw) Recent Developments in Statutory and Constitutional Interpretation (Christopher Walshaw) Ordinary Meaning and Empiricism (Brian G Slocum) Law as Narrative: Narrative Interpretation and Appropriation as an Element of Theft (Steven Cammiss) The Principle of Legality and Legislative Intention (Robert French) Legislative […]

Ying Khai Liew, ‘Constructive Trusts in Sri Lanka: A Model for an Expansive Approach’

ABSTRACT The formal source of trusts law in Sri Lanka is found in the 1917 Trusts Ordinance. This Ordinance was based on English law, being introduced during the British rule of (what was formerly) Ceylon. In the century since its introduction, the law has certainly not stood still, and the cases and understanding of trusts […]

Mitchell Johnston, ‘Reflective Remedies’

ABSTRACT This Note aims to develop and describe a new class of penalty, the reflective remedy, to address the problem of optimal deterrence when the law is uncertain. It describes a novel remedial option for traditional legal disputes, in which the activity level chosen by the defendant is ‘reflected’ over the socially optimal level, and […]

Gerald Postema, ‘The British Tradition of Legal Positivism’

ABSTRACT This essay traces a thematic thread through broadly Anglophone legal philosophy since the seventeenth century. Ownership of the title ‘positivism’ is contested in contemporary Anglophone jurisprudence. If we to take the core theses embraced by contemporary legal positivists to identify the key figures in their tradition the story would be very brief, starting, perhaps, […]

‘We Read 150 Privacy Policies. They Were an Incomprehensible Disaster.’

“In the background here are several privacy policies from major tech and media platforms. Like most privacy policies, they’re verbose and full of legal jargon — and opaquely establish companies’ justifications for collecting and selling your data. The data market has become the engine of the internet, and these privacy policies we agree to but […]