Björn Hoops, ‘Legal Certainty is Yesterday’s Justification for Acquisitions of Land by Prescription. What is Today’s?’

Legal certainty is the traditional justification of land acquisitions by prescription in the Netherlands and elsewhere. However, as land information systems become more comprehensive and reliable, this justification increasingly loses its foundation. Only where a transfer is invalid despite a registered transfer deed, is this justification still fully persuasive. This article examines alternative justifications of land acquisitions by prescription and assesses whether the requirements for acquisitions by prescription under Dutch law already reflect these justifications. The owner’s omission to monitor the use of the land is arguably a persuasive justification for the loss of ownership by prescription and is fully reflected by the requirement of ‘possession’. However, it fails to explain why a possessor who knowingly occupies somebody else’s land should become owner. This article proceeds to evaluate the labour theory, the personhood theory, the theory of human flourishing, and utilitarian approaches. These theories persuasively explain why a bad faith possessor should become owner, but are not reflected by Dutch law. As a last step, this article considers the reduction of wealth inequality as a justification of land acquisitions by prescription and concludes that tempting though this justification may be, prescription is not an adequate means to combat inequality.

Björn Hoops, Legal Certainty is Yesterday’s Justification for Acquisitions of Land by Prescription. What is Today’s?, European Property Law Journal. Published Online: 2018-09-19. DOI:

Paul Babie, ‘The “Monkey Selfies”: Reflections on Copyright in Photographs of Animals’

While brief, the two opinions delivered by the United States Court of Appeals for the Ninth Circuit in Naruto v Slater tell us a great deal about what property is, if only we are willing to look. On their face, the opinions consider the role of standing for animals in relation to copyright claims involving photographs. Upon deeper reflection, however, these two short opinions tell us about the nature and content of property, whether it is real or personal, tangible or intangible.

Paul T Babie, The ‘Monkey Selfies’: Reflections on Copyright in Photographs of Animals, UC Davis Law Review Online volume 52:103 (2018).

Ralf Michaels, ‘Private International Law As an Ethic of Responsivity’

The world is a mess. Populism, xenophobia, and islamophobia; misogyny and racism; the closing of borders against the neediest – the existential crisis of modernity calls for a firm response from ethics. Why, instead of engaging with these problems through traditional ethics, worry about private international law, that most technical of technical fields of law? My claim in this chapter: not despite, because of its technical character. Private international law provides such an ethic, an ethic of responsivity. It provides us with a technique of ethics, a technique that helps us conceptualise and address some of the most pressing issues of our time. It is not only ethically relevant, it is itself an ethic. Let me explain.

Michaels, Ralf, Private International Law As an Ethic of Responsivity (September 14, 2018). Forthcoming, Diversity and Integration in Private International Law (Veronica Ruiz Abou-Nigm and Maria Blanca Noodt Taquela eds, Edinburgh University Press, 2019); Duke Law School Public Law and Legal Theory Series.

‘Will there be a “Fiverrization” of the creative industries?’

“Uber changed the way the taxi industry worked; Airbnb had a similar impact on holiday lets and rentals. It is now the turn of the creative industries, often called the copyright industries, with online platforms going by names such as Quidjob, Upwork, PeopleForHour or Fiverr. And yes, ‘Fiverr’ hints at the fact that you may be able to commission and ‘buy’ creative content for … a ‘fiver’ (read – five dollars, five pounds, five euros etc). But commissioning bespoke creative content is not as simple as ordering a taxi ride because it inevitably involves the transfer of intellectual property rights …” (more)

[Mathilde Pavis, The IPKat, 19 September]

‘Adapting to changing circumstances in contracts and English contract law’: George Leggatt, Aston University, 19 October 2018

Aston Law School is pleased to welcome members of the legal community and friends of the university to the second lecture in Aston University’s lecture series in memory of Professor Jill Poole. The lecture is to take place on Friday 19th October 2018 and will be delivered by Lord Justice Leggatt … (more)

Michael Tilbury, ‘Aggravated Damages’

In their modern form, aggravated damages burst on the legal scene in 1964. Their nature is contestable. Commentators tend to argue that they compensate for losses associated with the plaintiff’s dignity. This paper argues that this view is both too narrow and too wide: too narrow because aggravated damages have not been limited to losses that can be so described; too wide because the view is based on the assumption that aggravated damages are an independent head of damage. Properly understood, aggravated damages are relevant in the assessment of damages, compensating for recoverable tangible or intangible losses that are incapable of objective monetary assessment and that have been increased by reason of the nature and circumstances of the defendant’s wrong. Their justification is the need to avoid the risk of under-compensation in such cases.

Michael Tilbury, Aggravated Damages, Current Legal Problems, Published: 14 September 2018.

Peter Westen, ‘Poor Wesley Hohfeld’

John Wesley Hohfeld has lost one audience and gained another in the century since he published his seminal Fundamental Legal Conceptions in 1919. Hohfeld originally conceived of his work as an aide to lawyers and law students. And law faculties initially embraced him enthusiastically. Over time, however, law faculties have lost interest in Hohfeld, and moral philosophers have taken their place, such that it is difficult to read widely nowadays in moral theory regarding war and self defense without coming across supportive references to Hohfeld. Unfortunately moral theorists too often invoke Hohfeld for propositions that he explicitly disavowed. Using Uwe Steinhoff and others as a foil, I discuss several of the most common errors that commentators make about Hohfeld.

Peter Westen, Poor Wesley Hohfeld, 55 San Diego Law Review 449 (2018).

Kenneth Simons, ‘Self-Defense, Necessity, and the Duty to Compensate, in Law and Morality’

What is the proper scope of the right to self-defense in law and morality? How does this right compare to the privilege of necessity? Professor Uwe Steinhoff’s manuscript offers a distinctive and wide-ranging perspective on the controversial questions these privileges raise. This essay engages with a number of his arguments, particularly focusing on legal and moral duties of compensation. First, this essay examines how Anglo-American tort law would likely address the defender’s liability in a variety of scenarios, including disproportionate, excessive, and unnecessary force; unreasonable and reasonable mistakes; and use of force against innocent aggressors. It next considers whether private necessity principles that apply to appropriations of private property also apply to actors who intentionally infringe or violate rights of bodily integrity. The essay then turns to the privilege of public necessity, which generally is not, but perhaps should be, accompanied by a duty to compensate, and its relationship to rights of self-defense. The following section explores mistake, justification, and excuse, and considers the question of whether an innocent victim should receive compensation from a reasonably mistaken defender. The final section explains that the notion of conditional fault helps make sense of a strict liability duty to compensate.

Kenneth W Simons, Self-Defense, Necessity, and the Duty to Compensate, in Law and Morality, 55 San Diego Law Review 357 (2018).

Xuyu Hu, ‘Equality of bargaining power in contracts for international liner shipping’

Mandatory rules exist in contracts for international liner shipping primarily because of imbalances and non-equity in the allocation of contract responsibilities. The superior bargaining position owned by the carriers depends largely upon liner market monopoly levels, the supply and demand balance between the shipper and carrier, and the cargo volume size of the shippers. With the development of shipping technologies, mode of transport, and shipping competition policy, the unequal comparison of bargaining forces between shippers and carriers changes. When the existing mandatory rule was deemed no longer necessary due to changing circumstances, legislation requirements to restore freedom to contract became apparent. When both sides have equal bargaining power, adoption of the principle of freedom of contract for their business relationships is suitable. The Rotterdam Rules concerning freedom of volume contract construction is based on equal bargaining powers between both sides and responds to the evolving situation of the industry. The Rules represent the development trend of today’s theory of contracts for international liner shipping and the demand for legal and institutional changes.

Xuyu Hu, Equality of bargaining power in contracts for international liner shipping, WMU Journal of Maritime Affairs. First Online: 14 September 2018.

‘No Fair Use for Mu(sic)’

“It’s an open secret that musicians will sometimes borrow portions of music or lyrics from prior works. But how much borrowing is too much? One would think that this is the province of fair use, but it turns out not to be the case – at least not in those cases that reach a decision. Edward Lee (Chicago-Kent) has gathered up the music infringement cases and shown that fair use (other than parody) is almost never a defense – not just that defendants lose, but that they don’t even raise it most of the time …” (more)

[Michael Risch, Written Description, 18 September]