‘Three Strikes for Copyright’

Abhishek Nagaraj, Does Copyright Affect Reuse? Evidence from Google Books and Wikipedia, Management Science (forthcoming 2017), available at abhishekn.com. How should copyright law change to take account of the internet? Should copyright expand to plug the internet’s leakiness and protect content that the internet would otherwise make more freely available? Or, should copyright relax its strict liability regime given diverse and productive reuses in the internet age and the benefits networked diffusion provides users and second-generation creators? Answering these questions depends on what we think copyright is for and how it is used and confronted by creators and audiences. In a new article studying these questions in the very focused setting of Wikipedia articles about baseball and baseball players (there are more than you might imagine!), Professor Abhishek Nagaraj demonstrates that where production of new knowledge depends on pre-existing information, strong copyright law can reduce both the quality and quantity of new content … (more)

[Jessica Silbey, JOTWELL, 13 October]

Kit Barker, ‘Private Law As a Complex System – Agendas for the Twenty-First Century’

This chapter provides a critical overview of the very wide range of challenges facing private law in the twenty-first century, ranging as they do from problems of education, technology, philosophical foundation, procedure and methodology to those of incoherence and unintelligibility produced by the proliferation of rules from sources that are increasingly diverse, and fragmented. It speculates upon the major challenges of modern system complexity and calls for more coordinated, reflexive thinking as between judges, legislators, policy-makers and the legal academy to make our private system of justice as robust, usable and morally attractive as it can be.

Barker, Kit, Private Law As a Complex System – Agendas for the Twenty-First Century (October 12, 2016), in K Barker, K Fairweather, R Grantham (eds) Private Law in the C21st (Oxford, Hart, 2017) 3-28.

Marcus Roberts, ‘Variation Contracts in Australia and New Zealand: Whither Consideration?’

When faced with unilateral contract variations, the lower courts in Australia and New Zealand have taken different paths regarding the requirement of consideration. In Australia consideration is still required to be provided by the promisee, but what counts as consideration can include ‘practical benefits’. In New Zealand, the requirement for consideration for variation contracts has essentially been removed. This article will analyse both approaches. It will argue that the ‘practical benefit’ test for consideration is severely flawed, and that the removal of consideration as a requirement for variation contracts is also conceptually dangerous. A removal of consideration for one type of contract (variations) cannot be achieved without bringing it into question for all types of contracts. This article will argue (unfashionably perhaps) that there is still a place for consideration and that the pre-existing duty rule for variation contracts should be retained.

Roberts, Marcus, Variation Contracts in Australia and New Zealand: Whither Consideration? (March 1, 2017). (2017) 17 Oxford University Commonwealth Law Journal 1-27.

Jorge Castiñeira Jerez, ‘The Unexpected Change of Circumstances Under American and Spanish Contract Law: Different Concepts, Different Methodology, Similar Outcomes’

Several recent decisions by el Tribunal Supremo (Spanish Supreme Court) have expressed the need to reconsider the contractual problems that may arise following an unexpected change of circumstances. However, these court decisions have not helped achieve normalization since they apply foreign legislative concepts and disregard the basic principles of Spanish contract law.

With the help of a comparative analysis, the aim of this article is to contribute to finding answers to a classical problem of Spanish contract law that needs an urgent solution in the context of the economic crisis. American law has been chosen to carry out this comparison because this legal system has not been studied in depth by Spanish authors when dealing with this issue and additionally because the practical approach of this law would be of value to a more formalistic system such as the Spanish or others legal systems of Continental Europe as the French, where this problem has not been provided with an specific solution.

It will also be shown that, despite the significant differences existing between US and Spanish law, the understanding of the problem and the solutions needed are not so different in both systems. This last conclusion is the best evidence of the fact that the value and usefulness of comparative law resides in the way of understanding legal problems and providing themwith solutions and not necessarily in making legal systems technically similar. The study and understanding of US law may contribute to finding a solution to the problem in Spain and also, more importantly, to show how the alleged differences existing between civil and common law systems are often more formal than substantial. It will also be shown the different approach adopted by US and Spanish contract law when facing crises situations.

Jorge Castiñeira Jerez, ‘The Unexpected Change of Circumstances Under American and Spanish Contract Law: Different Concepts, Different Methodology, Similar Outcomes’ (2017) 25 European Review of Private Law, issue 5, pp 909–940.

‘Enquiring Minds Want to Know: What Law Governs Forum Selection Clauses?’

Symeon C Symeonides, What Law Governs Forum Selection Clauses, 78 Louisiana Law Review (forthcoming 2018), available at SSRN. I can think of no better person to answer the burning question, ‘What law governs forum selection clauses?’ than the inestimable Symeon C. Symeonides, of conflict-of-laws fame. Symeonides has stepped into the breach to assist civil procedure and federal courts professors everywhere with an exhausting analysis of how to resolve the problems relating to applicable law as it applies to contractual forum selection clauses … (more)

[Linda S Mullenix, JOTWELL, 12 October]

Hamlyn Lectures 2017: Andrew Burrows, Thinking about Statutes: Interpretation, Interaction, Improvement: Oxford, Manchester, London, November 2017

LECTURE 1: ‘STATUTORY INTERPRETATION’: Despite its central importance, the study of statutes as a coherent whole has been and remains sadly neglected in UK law schools. These lectures address some of the central issues that arise if one thinks seriously and at a practical level about statutes. This first lecture on statutory interpretation examines four main questions. What is the present English law on how a statute is to be interpreted? Is statutory interpretation best understood as seeking to effect the intention of Parliament or is that an unhelpful fiction? What insights are to be gained by the idea that a statute is ‘always speaking’? And can one assimilate statutory interpretation with other types of legal interpretation, in particular the interpretation of contracts and common law precedents? 1 November, 17.30-18.30, Gulbenkian Lecture Theatre, Faculty of Law, St Cross Building, University of Oxford.

LECTURE 2: ‘THE INTERACTION BETWEEN COMMON LAW AND STATUTE’: In a common law system, intriguing questions arise about the interaction between common law and statute. This lecture examines three main issues concerned with that interaction. First, it looks at the development of the common law by analogy to statutes. Secondly, it explores the removal of the common law, or the freezing of its development, by statute. Thirdly, it considers the reform of the common law: should that be by judicial development or by statute? 9 November, 18:00–19:00, Whitworth Hall, University of Manchester.

LECTURE 3: ‘IMPROVING STATUTES’: How might we improve the quality of our statutes? In this lecture, and drawing on the experience of having been a Law Commissioner for England and Wales, a number of different avenues are explored. These include the style of statutory drafting, the role of Parliamentary Counsel, pre and post-legislative scrutiny, and the work of the Law Commission in respect of consolidation and statute law repeals. 15 November, 18:00-19:00, Institute of Advanced Legal Studies, 17 Russell Square, London.

Hanoch Dagan, ‘Markets for Self-Authorship’

Markets are said to serve goals such as efficiently allocating resources and entitlements, rewarding desert, inculcating virtues, and spreading power. This Essay, which was written for a special issue of Cornell Journal of Law and Public Policy on the ethical challenges of the market, focuses on another – arguably the most fundamental – goal: markets can serve our right to self-authorship (or self-determination). The aim of this Essay is to study the market’s autonomy-enhancing telos.

Markets are potentially conducive to people’s self-determination because alienating resources and entitlements enables geographical, social, familial, professional, and political mobility, which is often a prerequisite of meaningful autonomy. Markets are also important to self-authorship because they facilitate people’s ability to legitimately enlist one another in the pursuit of private goals and purposes – both material and social – thus enhancing our ability to be the authors of our own lives …

Dagan, Hanoch, Markets for Self-Authorship (October 10, 2017). Cornell Journal of Law and Public Policy, forthcoming.

‘After Brexit, is France Ready to Change its Approach to Law and Finance?’

“France has embarked on a major competition to benefit from Brexit and the weakening of London’s financial center. President Emmanuel Macron, as well as Prime Minister Edouard Philippe and Economy Minister Bruno Le Maire, have boasted, in turn, of the advantages of France and its infrastructure (its education system, health, and transportation). However, the importance of building a legal infrastructure has been largely ignored …” (more)

[Sophie Vermeille, Oxford Business Law Blog, 12 October]

Azfer Khan, ‘Certain uncertainty: thoughts against the remedial constructive trust’

Many argue that the English law of trusts affords too much protection to claimants with proprietary interests, especially those proprietary interests arising by operation of law. For this reason, contemporary scholars suggest that the courts should embark on a more flexible approach by employing the concept of a remedial constructive trust. This article seeks to challenge this suggestion through a discussion of three distinct aspects of the English law of trusts: (i) the ease of finding a proprietary interest, (ii) the defeasibility of such an interest and (iii) the relative certainty that exists in the current state of the law. It concludes with the idea that flexibility does not necessarily need to be introduced by having another remedy which the court may award, and other alternatives may be just as, or even more, viable options to consider.

Azfer A Khan, Certain uncertainty: thoughts against the remedial constructive trust, Trusts and Trustees, https://doi.org/10.1093/tandt/ttx139. Published: 10 October 2017.

Chia Ming Lee and Kenny Chng, ‘Lord Denning’s influence on contract formation in Singapore – an overdue demise?’

In a series of inconsistent decisions by the Singapore courts on contract formation in continuing negotiations cases, Lord Denning’s broad approach – which does away with the traditional offer and acceptance analysis – appears to have been simultaneously adopted and rejected. This article suggests that the continued uncertainty in Singapore regarding the scope of application of the traditional approach and Lord Denning’s approach arises from a conflation of both as being substantially similar. This article further argues that both approaches are conceptually and practically distinct. A better way forward for Singapore law in the area of contract formation in continuing negotiations cases, having regard to developments in English law and a comparative study of various approaches taken in international instruments and jurisdictions around the world, is to affirm the traditional approach as the default rule, subject to displacement in exceptional situations.

Chia Ming Lee and Kenny Chng, Lord Denning’s influence on contract formation in Singapore – an overdue demise?, Oxford University Commonwealth Law Journal. Received 13 Mar 2017, Accepted 30 Jun 2017, Published online: 04 Oct 2017, http://dx.doi.org/10.1080/14729342.2017.1383769.