Geoffrey Vos, ‘Judicial diversity and LawTech – Do we need to change the way we litigate business and property disputes?’

… my thesis is that, in the context of the technological developments that are affecting every aspect of what we do, we may need to consider changing our approach to court-based dispute resolution. If we do so, we may be able to kill at least two birds with one stone. We may be able to create a dispute resolution system truly fit for the middle part of the 21st century, and we may be able finally to complete the creation of a judiciary and a legal profession that is really representative, in terms of gender and ethnicity, of the society that they serve …

Sir Geoffrey Vos, Chancellor of the High Court, Judicial diversity and LawTech – Do we need to change the way we litigate business and property disputes?. Speech to Chancery Bar Association Annual Conference, Friday 18 January 2019.

Marcus Roberts, ‘Foakes v Beer: Bloodied, Bowed, but Still Binding Authority?

There was a fair amount of excitement among contract law scholars in early 2018 when the Supreme Court heard the case of Rock Advertising Ltd v MWB Business Exchange Centres Ltd. In fact, excitement levels were heightened further than usual because the Supreme Court was faced with not one, but two ‘truly fundamental issues in the law of contract’. These two fundamental issues were extremely important to the formation of variation contracts …

Marcus Roberts, Foakes v Beer: Bloodied, Bowed, but Still Binding Authority?, King’s Law Journal Volume 29, 2018 – Issue 3. Published online: 21 Jan 2019.

Journal of Personal Injury Law – Editorial vacancy

“The Journal of Personal Injury Law (JPIL) is recruiting a new editorial board member. Published by Sweet and Maxwell in association with APIL, JPIL is designed to inform, educate and influence lawyers, academics and those working in the personal injury claims sector. Ideally, the successful applicant will be either an academic lawyer or legal practitioner with an interest in the issues and subject matter …” (more)

‘New Title: Geoffrey Samuel, Rethinking Legal Reasoning, Edward Elgar, 2018′

“A book claiming to rethink legal reasoning would seem to be one making a very bold, if not arrogant, claim. And so the first observation to be made about my new work – Rethinking Legal Reasoning (Edward Elgar, 2018) – is that ‘rethinking’ should perhaps be viewed more modestly. It ought, at least with regard to this new title, to be understood as just a different way of viewing legal reasoning …” (more)

[British Association of Comparative Law, 20 January]

Just Published: Amnon Lehavi, Property Law in a Globalizing World

Property Law in a Globalizing World identifies the paramount challenges that contemporary processes of globalization pose for the study and practice of property law. It offers a straightforward analysis of legal scenarios implicating cross-border property rights, covering a broad range of resources, from land, goods, and intangible financial assets, to intellectual property, data, and digital assets. This is the first scholarly book offering a detailed study of legal strategies that can decrease the gap between the domestic tenets of property law and the cross-border nature of markets, interpersonal networks, and technology. It shows how strategies of soft law, conflict of laws, harmonization and supranationalism rely to various degrees on cross-border property norms and institutions, and studies the proprietary features of security interests and priorities to assets in insolvency in a global setting. It also shows how digital technology such as blockchain can revolutionize the system of cross-border property rights.

Amnon Lehavi, Property Law in a Globalizing World. 300pp. Cambridge University Press (17 January 2019). ISBN-10: 1108425127.

Christopher Yoo, ‘Self-Actualization and the Need to Create as a Limit on Copyright’

Personhood theory is almost invariably cited as one of the primary theoretical bases for copyright. The conventional wisdom views creative works as the embodiment of their creator’s personality. This unique connection between authors and their works justifies giving authors property interests in the results of their creative efforts. This Chapter argues that the conventional wisdom is too limited. It offers too narrow a vision of the ways that creativity can develop personality by focusing exclusively on the results of the creative process and ignoring the self-actualizing benefits of the creative process itself. German aesthetic theory broadens the understanding of the interactions between creativity and personality. Psychologists, aestheticians, and philosophers have underscored how originating creative works can play an important role in self-actualization …

Yoo, Christopher S, Self-Actualization and the Need to Create as a Limit on Copyright (August 31, 2018) in Comparative Aspects of Limitations and Exceptions in Copyright Law (Shyamkrishna Balganesh, Wee Loon Ng-Loy, and Haochen Sun eds, Cambridge University Press, forthcoming 2019); U of Penn Law School, Public Law Research Paper No 18-42.

Fagan and Khan, ‘Common law efficiency when joinder and class actions fail as aggregation devices’

We develop a litigant-based model of rule selection where parties choose to litigate rules that are efficient between two parties, but inefficient as between a potential class or potentially joined litigants and a counter-party. Collective action problems lead to incomplete party formation, which generates continuous litigation of seemingly efficient rules. By accounting for externalities borne by non-parties, we show that rules which are allocatively efficient across both parties and non-parties are evolutionary stable for any given judicial ideology or judicial preference for prestige, thus preserving the explanatory power of the Efficiency of Common Law Hypothesis.

Frank Fagan and Urmee Khan, Common law efficiency when joinder and class actions fail as aggregation devices, European Journal of Law and Economics, February 2019, Volume 47, Issue 1, pp 1–14.

‘Lunney’s Paradox: More Copyright May Lead to Less Creativity’

Glynn Lunney, Copyright’s Excess: Money and Music in the US Recording Industry (2018). The title of Glynn Lunney’s new book, Copyright’s Excess, presents a puzzle for those of us who have reflected on the nature and function of copyright law. Copyright is typically justified as a system of incentives. By giving authors (and by contract, publishers) exclusive control over commercially significant reproductions and distributions of their artistic and literary works, copyright helps to ensure that the copyright owner, and not copyists, will capture any profits made from exploiting the work. Copyright, in short, is supposed to help authors make more money. And in a world that works as economists expect, more money for authors should lead to more creative output. The equation seems simple: more copyright = more art and culture. But is this true? Is it possible that copyright protections might backfire, and result in less creative output rather than more? … (more)

[Christopher J Sprigman, JOTWELL, 18 January]

‘Conference on “The CISG at Middle Age” at the University of Pittsburgh School of Law’

“The conference presents the opportunity to consider whether the widespread state ratification of the CISG indicates success in international law development, or whether the common practice of opting out of the CISG in private contracts demonstrates that its impact has been limited at best …” (more)

[Charles Kotuby, Conflict of Laws .net, 18 January]

John Eldridge, ‘Contract Codification and “Certainty”’

In March 2012, the Commonwealth Attorney-General’s Department issued a brief but wide-ranging discussion paper which canvassed the possibility of codifying or otherwise reforming the Australian law of contract. This article is concerned with a particular dimension of the debate sparked by that paper: namely the question of whether codification would promote ‘certainty’ in the Australian law of contract. It first seeks to establish an understanding of the likely nature of any successful Australian contract codification project. It then proceeds to set out and apply a framework for understanding the concept of ‘certainty’ in the present context. It is concluded that although there may be cause to think that codification might promote ‘certainty’ to at least some extent, there are good reasons to think that its impact in this respect would likely be less significant than has often been suggested.

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John Eldridge, Contract Codification and ‘Certainty’ (2018) 35 Journal of Contract Law 146.