Keren-Paz and Wright, ‘Liability for Mass Sexual Abuse’

When harm is caused to victims by multiple injurers, difficult issues arise in determining causation of, legal responsibility for, and allocation of liability for those harms. Nowhere is this more true than in child pornography and sex trafficking cases, in which individuals have been victimized over extended periods of time by hundreds or even many thousands of injurers, with multiple and often overlapping victims of each injurer. Courts (and lawyers) struggle with these situations for a simple reason: they insist on applying tests of causation that fail when the effect was over-determined by multiple conditions. The failure to properly understand the causation issue has exacerbated failures to properly understand and distinguish the injury, legal responsibility and allocation of liability issues.

All of these issues, plus other significant issues, arose in Paroline v United States (2014), in which the Supreme Court considered the statutory liability of a convicted possessor of child pornography to a victim whose images he possessed for the pecuniary losses that she suffered due to her knowledge of the widespread viewing of those images. In this article we critique the Justices’ opinions in Paroline as part of a broader discussion that is intended to clarify and distinguish the causation, injury, legal responsibility and allocation of liability issues in general and as applied in particular to situations involving mass sexual abuse, while also criticizing the Court’s ill-considered dicta that would make any compensatory award in civil as well as criminal cases subject to the Constitutional restrictions on criminal punishment.

Keren-Paz, Tsachi and Wright, Richard W, Liability for Mass Sexual Abuse (March 15, 2018).

Lemley and Feldman, ‘Is Patent Enforcement Efficient?’

Traditional justifications for patents are all based on direct or indirect contribution to the creation of new products. Patents serve the social interest if they provide not just invention, but innovation the world would not otherwise have. Non-practicing entities (‘NPEs’) as well as product-producing companies can sometimes provide such innovation, either directly, through working the patent or transferring technology to others who do, or indirectly, when others copy the patented innovation. The available evidence suggests, however, that patent licensing demands and lawsuits from NPEs are normally not cases that involve any of these activities.

Some scholars have argued that patents can be valuable even without technology transfer because the ability to exclude others from the market may drive commercialization that would not otherwise occur. We demonstrate that even if various commercialization theories can sometimes justify patent protection, they cannot justify most NPE lawsuits or licensing demands.

Mark A Lemley and Robin Feldman, Is Patent Enforcement Efficient?, 98 Boston University Law Review 101 (2018), DOI 10.17605/OSF.IO/5JVWX.

Juliet Brook, ‘Testamentary freedom – myth or reality?’

Testamentary freedom has been cited as an integral part of the law of England and Wales; the Law Commission has described the idea of forced heirship as ‘alien to our legal tradition’. Yet despite the only statutory limitation to testamentary freedom being the Inheritance (Provision for Family and Dependants) Act 1975, there are other subtler statutory influences on our testamentary dispositions, such as the provisions of the Inheritance Tax Act 1984. The first part of this paper will be historical in nature, briefly considering the context in which testamentary freedom was first granted and the restrictions that were placed on that freedom during the 20th century. Against this background the inheritance tax principles will then be set, so that a greater understanding can be gained as to why particular dispositions receive more favourable tax treatment. Finally, the changes to inheritance tax that came into effect in April 2017 will be examined, with consideration of the effects of those amendments on testamentary dispositions …

€ (Westlaw)

Juliet Brook, ‘Testamentary freedom – myth or reality?’ 2018 Conveyancer and Property Lawyer 19.

Mark Davies, ‘Educational background and access to legal academia’

The focus of this paper is upon the educational background of academic lawyers in England and Wales and the extent to which qualifications from certain institutions may be seen as acting as a proxy for social class. In recent years higher educational background and socio-economic background have been significant topics of research relating to entry to the legal professions and judiciary in England and Wales. There is a relative absence of such research relating to academic lawyers. The research discussed in this paper aims to close that gap. The paper argues that critiques relating to the elite nature of the traditional legal professions in terms of educational background have parallels within the academic legal community, evidenced by a dominance of those educated at Cambridge, Oxford and other Russell Group institutions, with relatively lower proportions of graduates from other sectors, most notably the post-1992 universities. The paper further argues that economic hurdles to entry to an academic legal career are significantly higher than those for other law related careers, potentially exacerbating issues of socio-economic exclusion. The conclusion drawn is that law schools should engage proactively with measures to expand opportunities for entrants into the academic legal community from candidates from a much wider range of educational backgrounds.

Mark Davies, Educational background and access to legal academia, Legal Studies, Published online: 13 March 2018.

‘Save the date: Conference on Punitive Damages and European Private International Law in Milan, 11 May 2018’

“On 11 May 2018 the Department of Italian and Supranational Public Law of the University of Milan will host a conference on Punitive Damages and European Private International Law: State of the Art and Future Developments, in cooperation with the Interest Group on Private International law of the Italian Society of International Law and with the Rivista di diritto internazionale privato e processuale …” (more)

[Giesela Ruehl, Conflict of Laws .net, 15 March]

Colin Marks, ‘Online Terms as In Terrorem Devices’

Online shopping has quickly replaced the brick-and-mortar experience for a large portion of the consuming public. The online transaction itself is rote: browse items, add them to your cart, and checkout. Somewhere along the way, the consumer is likely made aware of (or at least exposed to) the merchant’s terms and conditions, via either a link or a pop-up box. Such terms and conditions have become so ubiquitous that most consumers would be hard-pressed to find a merchant that doesn’t try to impose them somewhere on their website. Though such terms and conditions are pervasive, most consumers do not bother to read them before checking-out. Consumers might be surprised at what they would find if they did read the terms and conditions as many retailers include clauses limiting liability, disclaiming warranties as well as choice of law, forum selection, arbitration, jury waiver, and class action waiver clauses. Many of these clauses are grounded in a practical concern over limiting liability and lowering transaction costs. However, the fact that retailers do not include such clauses as part of their in-store transactions raises the question of whether the retailers are actually concerned with binding consumers to such terms.

The apparent lack of importance of these terms is further highlighted by the fact that most retailers use ‘browsewrap’ terms and conditions to bind their customers, despite browsewrap being one of the least effective methods of making consumers aware of the terms. While these terms and conditions may provide some utility to the companies attempting to impose them, the main benefit may in fact be their in terrorem effect. This is especially true in instances where companies have failed to adequately notify their consumers about the terms’ existence. This article examines the various methods that are used in online contracting to bind consumers, as well as the enforceability of the most common terms. The article concludes that the primary incentive sellers have to include such terms on their websites is their in terrorem effect. Though the use of online terms and conditions as in terrorem devices may be appealing economically, the use of browsewrap as the primary notification device ex ante presents moral and ethical issues.

Marks, Colin P, Online Terms as In Terrorem Devices (March 12, 2018).

Orit Gan, ‘Anti-Stereotyping Theory and Contract Law’

Women gained the right to contract in the nineteenth century, but it nevertheless remains relevant to ask whether modern day contract law discriminates against women. In answering this question, this Article applies anti-stereotyping theory to contract law. This anti-discrimination theory is most commonly used in equal protection cases and in Title VII cases, but its relevance is not limited to such cases. Analyzing contract law doctrines through the lens of anti-stereotyping theory reveals contract law’s gender biases. Contract law endorses an ‘economic men’ rule and a ‘domestic women’ exception. Thus, economic concerns (generally associated with men) are at the core of contract law and other values (generally associated with women) are at the margins. This hierarchy is based on gender stereotypes and is thus discriminatory. This Article suggests that contextual contract law should be used to transcend such stereotypical and binary thinking and to make contract law more inclusive and egalitarian.

Gan, Orit, Anti-Stereotyping Theory and Contract Law (February 5, 2018). Harvard Journal of Law and Gender, Vol 42, 2018.

Snyder and Burge, ‘American Contract Law for a Global Age: Chapters 1 and 2’

American Contract Law for a Global Age by Franklin G Snyder and Mark Edwin Burge of Texas A&M University School of Law is a casebook designed primarily for the first-year Contracts course as it is taught in American law schools, but is configured so as to be usable either as a primary text or a supplement in any upper-level United States or non-US class that seeks to introduce American contract law to students. This excerpt contains the first six units (two chapters) of the 28-unit complete text. As an eLangdell text published by CALI, it offers maximum flexibility for students to read either in hard copy or electronic format on most electronic devices. Why ‘American’ Contract Law? Nearly all American contract law texts focus on US law. This volume simply makes that focus explicit …

Snyder, Franklin G and Burge, Mark Edwin, American Contract Law for a Global Age: Chapters 1 and 2 (December 1, 2017), CALI eLangdell Casebook, 2017.

Kenneth Abraham, ‘Tort Luck and Liability Insurance’

Important features of both the incidence and magnitude of tort liability depend heavily, and therefore arbitrarily, on luck. One of a number of examples is the eggshell-plaintiff rule, which imposes liability for all the physical injury a defendant causes, even if the amount of that injury was unforeseeable. In each instance, tort liability hinges on chance in a way that bears only an attenuated relationship, or no relationship, to the degree of responsibility that can fairly be attributed to the party in question. Despite the arguable injustices that tort luck reflects, it remains in the background, largely uncontroversial. Tort luck would be surprising, intolerable, or both, if it were not enmeshed in a system that relies so heavily on liability insurance to cushion its impact. Liability insurance reconciles, ameliorates, or eliminates many of the anomalies and contradictions in tort doctrines that might long ago have disappeared if it were not for liability insurance. This Article analyzes the ways that liability insurance interacts with tort luck, identifying the pervasive presence of insurance in tort liability, from both qualitative and quantitative perspectives. It then examines the tort doctrines and practices that make liability hinge, arguably arbitrarily, on luck, and the ways in which insurance ameliorates this tort luck. Finally, the Article develops a counter-history of tort law, exploring the shape that tort law might have taken if liability insurance had not been available to play a role in ameliorating tort luck.

Abraham, Kenneth S, Tort Luck and Liability Insurance (March 13, 2018). Rutgers University Law Review, forthcoming.

Craig Purshouse, ‘Utilitarianism as tort theory: countering the caricature’

Utilitarianism, the view that ‘actions are right in proportion as they tend to promote happiness, wrong as they tend to produce the reverse of happiness’, is no longer taken seriously either as a moral principle or as a theory of tort law. Rights-based theories appear to have won the day. The purpose of this paper is to counter this trend and demonstrate that utilitarianism is not the implausible straw man that its opponents have constructed. Relying upon a version of utilitarianism advanced by the philosopher RM Hare, I will demonstrate that distinguishing between two levels of utilitarian thinking can provide a credible explanatory and normative theory of tort law that is immune to many of the critiques usually levelled at this theory. My final conclusion is that if a rights-based theory of tort law is convincing, it may be one with utilitarian foundations.

Craig Purshouse, Utilitarianism as tort theory: countering the caricature, Legal Studies, Published online: 12 March 2018.