Erika Nash, ‘Blockchain and Smart Contract Technology: Alternative Incentives for Legal Contract Innovation’

“… This Note considers whether alternative means exist to incentivize contract innovation in the marketplace, even in the absence of intellectual property rights. More specifically, the following analysis evaluates whether smart contract and blockchain technology can incentivize contract innovation. The research is designed to assist business lawyers and executives looking to leverage these technologies and is organized as follows …”

Erika J Nash, Blockchain and Smart Contract Technology: Alternative Incentives for Legal Contract Innovation, Brigham Young University Law Review 799 (2020).

Igor Shoikhedbrod, ‘Private Law’s Estranged Bedfellows: Why Pashukanis Should Worry Contemporary Formalists’

“The title of this article betrays a seemingly ironic if not altogether improbable thesis – that the legal thought of Evgeny Pashukanis shares important assumptions of the ‘bourgeois’ legal philosophy that it was intended to refute. More specifically, I submit that Pashukanis shares more in common with the neo-Kantian representatives of legal formalism than he or his contemporary advocates and detractors have cared to acknowledge. In what follows, I maintain that the peculiar interest in Evgeny Pashukanis among contemporary neo-Kantian legal formalists can be explained by his inadvertent fetishization of private law in general and property law in particular …”

Igor Shoikhedbrod, Private Law’s Estranged Bedfellows: Why Pashukanis Should Worry Contemporary Formalists , Canadian Journal of Law and Jurisprudence (2020), doi: 10.1017/cjlj.2020.4.

Ho and Nolan, ‘The performance interest in the law of trusts’

…. In what follows, Pt II of this article considers the basic case law establishing the axiomatic principle of the law of trusts – that a trust must be performed. Next, in Pt III, the article briefly sketches the most important mechanisms through which the law of trusts secures performance of the trust in cases where the current trustees are not voluntarily performing it. Part IV of the article briefly outlines various structural features of trusts which reflect, and are a consequence of, the basic axiom that a trust must be performed. In Pt V, the article considers remedies for breach of trust which all manifest the concern of trust law with performance rather than compensation in lieu of performance. Part VI develops one of the key points to be made in this article: that the law of trusts is significantly and fundamentally different from the law of contract in its concerns and its structure. Finally, Pt VII sets out the implications, both theoretical and practical, of these important distinctions between the law of trusts and the law of contract.

€ (Westlaw)

Lusina Ho and Richard C Nolan, ‘The performance interest in the law of trusts’ (2020) 136 Law Quarterly Review (July) 402.

Adrian Zuckerman, ‘Artificial intelligence – implications for the legal profession, adversarial process and rule of law’

… This paper sets out the technological background by outlining machine learning and its potential, the use of computer technology in law, and the pressures for ever-greater exploitation of its capabilities. It then explores the implications of extensive AI penetration into legal services for the legal profession. Finally, it considers the practical consequences of replacing (wholly or partially) lawyers and judges with AI-enabled machines; the effect on the adversarial system; and the risks to public confidence in the administration of justice, to institutional legitimacy and the rule of law.

The discussion is mainly concerned with civil proceedings, leaving out the use of AI in the criminal process, which merits a separate discussion. The focus is on AI strategies which are capable of generating autonomous outcomes, as distinguished from mechanical uses such as replacing paper with digital formats, or word searches. Questions about the abuse of AI, the potential for undue interference (political or fraudulent), and other aspects of digital security are not addressed.

€ (Westlaw)

Adrian Zuckerman, ‘Artificial intelligence – implications for the legal profession, adversarial process and rule of law’ (2020) 136 Law Quarterly Review (July) 427.

David Kershaw, ‘Corporate law’s fiduciary personas’

… This article is concerned with corporate law’s multiple fiduciary personas. It argues that although corporate law is very familiar with the idea that one person can have several capacities in which that person has a relationship with the company – as, for example, shareholder, creditor, employee and director – it has lost sight of the similar and basic fiduciary insight. It has come to treat all the fiduciary relationships which a person who is a director of the company has with the company as being subsumed by the role of director, when in fact a person who is a director may undertake multiple and separate fiduciary obligations qua, inter alia, director, senior manager or agent …

€ (Westlaw)

David Kershaw, ‘Corporate law’s fiduciary personas’ (2020) 136 Law Quarterly Review (July) 454.

Rory Gregson, ‘Is subrogation a remedy for unjust enrichment?’

… So, who is right? Is subrogation a remedy for unjust enrichment or not? This article argues that subrogation is not a remedy for unjust enrichment in the sense that is usually assumed, since it is not governed by the same rules as other remedies for unjust enrichment. In light of this, judges and scholars need to reconsider what the law of unjust enrichment is, and how it is unified.

To substantiate this argument, the article is structured as follows. Part II defines subrogation. Part III considers what judges and scholars mean when they say that subrogation is a remedy for unjust enrichment. It is generally assumed that there are two consequences of subrogation being a remedy for unjust enrichment: first, that a claim for subrogation raises the unjust enrichment questions; and secondly, that a claim for subrogation is governed by unjust enrichment’s rules. Parts IV and V show that the second consequence is not true. The recent Supreme Court decisions in Swynson and Investment Trust Companies show that subrogation is governed by different rules to other remedies for unjust enrichment. Part VI considers the implications for subrogation and unjust enrichment. Part VII concludes.

€ (Westlaw)

Rory Gregson, ‘Is subrogation a remedy for unjust enrichment?’ (2020) 136 Law Quarterly Review (July) 481.

‘Mischief and Snap Removal’

Samuel L Bray, The Mischief Rule, Georgetown Law Journal (forthcoming 2021), available at SSRN. Civil Procedure may mark 1Ls’ first encounter with statutes and judicial interpretation and elaboration of statutory text. Some of the provisions in the canon are barebones to the point of meaningless without judicial elaboration – ‘short and plain statement of the claim’ or a corporation’s ‘principal place of business’ have no obvious meaning. Other statutes and rules are more substantial and allow for deeper textual parsing. Either way, statutory analysis remains an essential component of the study of courts law … (more)

[Howard M Wasserman, JOTWELL, 3 June]

Perzanowski and Fagundes, ‘Abandoning Copyright’

For nearly two hundred years, US copyright law has assumed that owners may voluntarily abandon their rights in a work. But scholars have largely ignored copyright abandonment, and the case law is fragmented and inconsistent. As a result, abandonment remains poorly theorized, owners can avail themselves of no reliable mechanism to abandon their works, and the practice remains rare. This Article seeks to bring copyright abandonment out of the shadows, showing that it is a doctrine rich in conceptual, normative, and practical significance. Unlike abandonment of real and chattel property, which imposes significant public costs in exchange for discrete private benefits, copyright abandonment is potentially costly for rights holders but broadly beneficial for society. Nonetheless, rights holders – ranging from lauded filmmakers and photographers to leading museums and everyday creators – make the counterintuitive choice to abandon valuable works. This Article analyzes two previously untapped resources to better understand copyright abandonment. First, we survey four decades US Copyright Office records, demonstrating both the motivations for abandonment and the infrequency of the practice. Second, we examine every state and federal copyright abandonment case, a corpus of nearly 300 decisions. By distilling this body of law, this Article distinguishes abandonment from a set of related doctrines and reveals the major fault lines in judicial application of the abandonment standard. Finally, we highlight the potential of abandonment to further copyright’s constitutional aims by suggesting a series of reforms designed to better align copyright holder incentives with the public good.

Perzanowski, Aaron and Fagundes, Dave, Abandoning Copyright (February 24, 2020). William and Mary Law Review, forthcoming.

Tingle and Spackman, ‘Do Corporate Fiduciary Duties Matter?’

The duty of corporate fiduciaries to act in the best interests of the firm lies at the heart of most stories about corporate law. It has occupied the center of what is probably the longest and most extensive debate in corporate law: whether the duties should be owed to shareholders alone or to other constituencies impacted by corporate decisions. Alterations to the character of fiduciary duties are regularly proposed by reformers as a way to reduce various harms, from plant closures to pollution. The character of the duty has been blamed for failures by the corporate form to advance public goods, leading to reforms like the ‘benefit corporation’. Finally, the fiduciary duty has generally been understood to be an important element in the modern project of controlling agency costs.

This paper is not about the shareholder primacy/stakeholder debate; it is about whether this long-standing debate actually matters. It takes up the question whether any visible real-world results follow an alteration of the character of fiduciary duties. Most importantly, it examines whether controlling the self-interested behavior of agents is really the central question of corporate law …

Tingle, Bryce and Spackman, Eldon, Do Corporate Fiduciary Duties Matter? Annals of Corporate Governance:  volume 4: no 4, pp 272-326, 2019.

‘New Judgment: Serafin v Malkiewicz and Others [2020] UKSC 23′

“Serafin had sued Malkiewicz and Others for libel in respect of an article they had published about him in Nowy Czas, a newspaper addressing issues of interest to the Polish community in the UK. The Court of Appeal found that the conduct of the trial by Mr Justice Jay in the High Court had been unfair towards the claimant and allowed the claimant’s appeal. The defendants appealed against that finding to the Supreme Court. They also challenged the Court of Appeal’s analysis of the effect of the Defamation Act 2013, s 4, which sets out ‘the public interest defence’ to a defamation claim …” (more)

[UK Supreme Court Blog, 3 June]