Nolan and Robertson, ‘Rights and Private Law’

This chapter provides an overview of the relationship between rights and private law. The chapter is structured as follows: in part II, we examine the meaning of ‘rights’ (or ‘rights-based’) analysis of private law; in part III, we examine the meaning of the term ‘right’ in this context; in part IV, we explore the normative implications of rights-based theories of private law; part V is concerned with the relationship between rights and duties; part VI focuses on the relationship between rights-based analysis and liability rules which are not triggered by wrongs; in part VII, we look at the implications of the rights-based approach for private law remedies; part VIII is concerned with the relationship between rights-based and policy-based reasoning in private law; in part IX, we explain the relationship between rights-based theories and corrective justice; in part X, we explore the implications of rights analysis for the taxonomy of private law; and in part XI we consider the role of the state in a rights-based understanding of private law.

Nolan, Donal and Robertson, Andrew, Rights and Private Law (December 2, 2011) in Donal Nolan and Andrew Robertson (eds), Rights and Private Law (Hart 2011) 1-33.

Peter Handford, ‘Liability for Work Stress: Koehler Ten Years On’

This article was published in a special issue of a journal commemorating the life and work of Dr Peter Johnston. It focused on a case drawn to the attention of the author by Dr Johnston – AZ v The Age (No 1) [2013] VSC 335. This case is used as a vehicle for assessing the approach being taken by Australian courts to claims for work stress, ten years after the leading High Court decision in Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44. In the first decade of the 21st century, both in England and Australia, appellate courts found it necessary to impose some order on this body of law. In Australia, the High Court, by focusing on the content of the duty of care as reflected in the contract of employment, placed a considerable brake on expansion; in England, as the result of the decision of the Court of Appeal in Hatton v Sutherland [2002] ICR 613, the restrictions took a different form. The article reviews the current Australian situation, and assesses how it differs from its English equivalent, even though the two lines of cases are derived from common roots. The article concludes by discussing trends and contrasts in the case law, including a suggestion that the courts are beginning to distinguish between different types of work stress cases.

Handford, Peter, Liability for Work Stress: Koehler Ten Years On (2017). (2015) 39(2) University of Western Australia Law Review 150; UWA School of Law Research Paper.

Donal Nolan, ‘Nuisance and Human Rights’

The purpose of this chapter is to explore the different aspects of the relationship between the tort of private nuisance and the Human Rights Act 1998 (‘HRA’). The chapter is divided into three main parts. In the first part, I consider the ‘vertical effect’ of the HRA in environmental nuisance cases. In the second part of the chapter, I consider the relationship between the vertical effect of the HRA and the law of nuisance. In particular, I identify the advantages and disadvantages for a claimant of the two possible routes to redress, and the inter-relationship between the two types of claim when they arise on the same set of facts. And in the third and final part of the chapter, I consider the possible ‘horizontal effect’ of the HRA on the law of nuisance itself, looking in particular at the standing rules and the statutory authority defence. I conclude that the horizontal effect of the HRA on the law of nuisance is likely to be very limited.

Nolan, Donal, Nuisance and Human Rights (October 13, 2011) in David Hoffmann (ed), The Impact of the UK Human Rights Act on Private Law (CUP 2011) 165-194.

John Lightbourne, ‘Algorithms and Fiduciaries: Existing and Proposed Regulatory Approaches to Artificially Intelligent Financial Planners’

Artificial intelligence is no longer solely in the realm of science fiction. Today, basic forms of machine learning algorithms are commonly used by a variety of companies. Also, advanced forms of machine learning are increasingly making their way into the consumer sphere and promise to optimize existing markets. For financial advising, machine learning algorithms promise to make advice available 24-7 and significantly reduce costs, thereby opening the market for financial advice to lower-income individuals. However, the use of machine learning algorithms also raises concerns. Among them, whether these machine learning algorithms can meet the existing fiduciary standard imposed on human financial advisers and how responsibility and liability should be partitioned when an autonomous algorithm falls short of the fiduciary standard and harms a client. After summarizing the applicable law regulating investment advisers and the current state of robo-advising, this Note evaluates whether robo-advisers can meet the fiduciary standard and proposes alternate liability schemes for dealing with increasingly sophisticated machine learning algorithms.

John Lightbourne, Algorithms and Fiduciaries: Existing and Proposed Regulatory Approaches to Artificially Intelligent Financial Planners, 67 Duke Law Journal 651-679 (2017).

Post-Doctorate Fellowships (1) in Markets, Ethics, and the Law, and (2) in Virtual Markets, Ethics, and the Law: Edmond J Safra Center for Ethics at Tel Aviv University

The Edmond J Safra Center for Ethics at Tel Aviv University is accepting applications for its 2018-19 post-doctorate fellowship program. The Center offers grants to outstanding researchers who study the ethical, moral and political aspects of markets, both local and global, from all disciplines and fields, including economics, social sciences, business, the humanities, and the law … (more)

The Edmond J Safra Center for Ethics and The Blavatnik Interdisciplinary Cyber Research Center at Tel Aviv University are delighted to announce two new post-doctorate fellowships, focusing on virtual markets, ethics and the law, for the academic year 2018-19. We are looking for candidates who wish to explore the ethical challenges of the market in the increasingly significant cyber environment. Both empirical and normative research projects are welcomed … (more)

Carol Sanger, ‘The Lopsided Harms of Reproductive Negligence’

The concept of reproductive negligence is probably not unfamiliar to men and women of child-bearing or child-begetting age. Many a restless hour has been spent worrying about the consequences of a skipped pill, an abandoned condom, or some other form of contraceptive carelessness. The general rule in such circumstances is that the injured party has no recourse in tort against a sexual partner whose negligence resulted, say, in a pregnancy. (Interestingly, liability may arise as the result of the negligent transmission of herpes.) To be sure, not all reproductive misconduct is negligent; some is intentional, as when a sexual partner tampers with his partner’s birth control or lies about the use of contraception. But here, too, no liability attaches for the harm of an unwanted pregnancy …

Carol Sanger, The Lopsided Harms Of Reproductive Negligence, Columbia Law Review Online, volume 118 (11 December 2017) pp 29-47.

Russell and Shakhnazarov, ‘Russia – a new province for trust law?’

Given its civil law tradition and, for over 70 years, rejection of the concept of private (as opposed to personal) property, the Russian Federation may seem an unlikely place for the concept of the trust to develop, but a trust-like phenomenon has been developed, and now forms part of the Russian Civil Code. In this article, the authors review these provisions, contrast the relationships for which they provide with a common law trust, note the very substantial similarities between them, and hazard a tentative view as to the possible application of the Hague Trusts Convention should the Russian arrangements come to be considered by a court in a Hague Convention jurisdiction.

David Russell and Karen Shakhnazarov, Russia—a new province for trust law?, Trusts and Trustees, Volume 23, Issue 9, 1 November 2017, Pages 936–943,

‘Rakoff on the Five Justices of Contract Law’

“In the private law workshop’s final meeting of the fall semester, we were pleased to host Professor Todd Rakoff, who presented his recent article, ‘The Five Justices of Contract Law’. Rakoff begins by summarizing the conventional wisdom on the role of justice considerations in contract. These accounts portray justice as having a fairly narrow ambit, taking a backseat to notions of efficiency and the freedom of exchange. As an extreme example, Rakoff highlights the tendency of some law professors to regard justice considerations as being relegated entirely to the rarely successfully invoked doctrine of unconscionability. In Rakoff’s view, such characterizations markedly understate the extent to which contract law is shaped by the courts’ pursuit of justice …” (more)

[Erik Hovenkamp, New Private Law, 12 December]

Martha Chamallas, ‘The Elephant in the Room: Sidestepping the Affirmative Consent Debate in the Restatement (Third) of Intentional Torts to Persons’

In contemporary debates about legal responsibility for sexual misconduct, the status of ‘affirmative consent’ is front and center. Most often associated with the campus rape crisis and the enforcement of Title IX by colleges and universities, affirmative consent places responsibility on individuals who initiate sex to secure the affirmative permission of their partners before engaging in sexual conduct. Going beyond ‘no means no’, affirmative consent is best captured by the slogan ‘only yes means yes’ and aims to protect those sexual assault victims who react passively or silently in the face of sexual aggression, even though they do not desire to have sex and would not have initiated the sexual activity if they had been given the choice. The criminal law in most states has not yet caught up with these developments and has continued to require either a showing of ‘force’ on the part of the defendant or proof of a verbal objection on the part of the victim.

Given its prominence, one might expect affirmative consent to emerge as a central issue in the revision of the Restatement (Third)’s provisions on consent. Instead, affirmative consent makes an appearance only briefly in the Restatement’s commentary and has not affected the core black letter statements of the law of consent. Although purporting to be neutral, the approach of the Restatement (Third) is incompatible with affirmative consent, both in the Restatement’s definitions of actual and apparent consent and in its determination to assign the burden of proof to the plaintiff instead of the defendant. Because there is no controlling precedent that would prevent the Restatement (Third) from embracing affirmative consent, the Restatement (Third) is free to follow the Title IX model and incorporate affirmative consent into the body of tort law. This article makes the case for adopting affirmative consent in sexual misconduct tort cases, even if the criminal law in any given jurisdiction continues to apply a more defendant-oriented consent rules.

Martha Chamallas, The Elephant in the Room: Sidestepping the Affirmative Consent Debate in the Restatement (Third) of Intentional Torts to Persons, Journal of Tort Law. Published Online: 2017-12-12. DOI:

‘The New French Code Civil – in a Broader Context’: Special Issue of European Review of Contract Law

European Review of Contract Law Volume 13, Issue 4 (Dec 2017)

The French Contract Law Reform and the Political Process – Bénédicte Fauvarque-Cosson

The Anatomy of the New French Law of Contract – Genevieve Helleringer

What is a Modern Law of Contracts? Elements for a New Manifesto for Social Justice in European Contract Law – Muriel Fabre-Magnan

The Reform of French Contract Law: An Analysis of its Application to Corporate Acquisitions – François Barrière, Pascal Bine and Olivier Diaz

La Cause a-t-elle réellement disparu du Droit français des Contrats? – Olivier Deshayes, Thomas Genicon et Yves-Marie Laithier

Reform of Contract Law and Business World – Mustapha Mekki

The Reform of the French Civil Code at a Distance: an International and Comparative Perspective – Horatia Muir Watt

The French and the German Reforms of Contract Law – Stefan Grundmann and Marie-Sophie Schäfer