Gentry and Viscusi, ‘Asymmetric Effects on Fatality Rates of Changes in Workers’ Compensation Laws’

With irreversible investments in safety, changes in workers’ compensation laws should affect employer incentives asymmetrically: increases in workers’ compensation generosity should cause employers to invest more in safety, but comparable decreases might not cause them to disinvest in existing precautionary programs or equipment. Although maximum weekly benefits caps have been fairly stable, state laws have expanded or restricted workers’ compensation on multiple other dimensions. State laws may impose new requirements regarding burdens of proof, access to medical care, and the duration of benefits. This article estimates the effect of changes in these more comprehensive measures of workers’ compensation laws on workplace safety. Using confidential, restricted data from the Census of Fatal Occupational Injuries, the article finds that increases in workers’ compensation generosity lead to a significant decrease in fatality rates, while decreases in workers’ compensation generosity do not significantly increase fatality rates.

Elissa Philip Gentry and W Kip Viscusi, Asymmetric Effects on Fatality Rates of Changes in Workers’ Compensation Laws, American Law and Economics Review, Published: 11 July 2019.

Tasneem Haradasa, ‘Causation in Section 15 of the Property (Relationships) Act 1976: Analysing the New Zealand Supreme Court’s “Working Assumption” – Is It Really Working?’

Scott v Williams concerned s 15 of the Property (Relationships) Act 1976. In situations of significant economic disparity post-separation, s 15 empowers courts to depart from the default rule of equal division of relationship property to compensate the disadvantaged partner. Causation is one of the jurisdictional hurdles. Only disparity ‘because of’ the division of functions (DOF) is compensable. Thus far, courts have adopted a strict causation approach by placing a costly and often unattainable evidential burden on claimants. Consequently, compensation has been beyond reach for deserving claimants. Responding to this disquiet, Scott’s majority propounded a ‘working assumption’ of causation in relationships conducted along traditional lines, where one party assumes primary responsibility for domestic duties and the other for income-earning. In such situations, Scott’s majority would assume causation at jurisdiction and attribute the entire disparity to the DOF when determining the quantum award. This article concludes that the working assumption is a positive development in terms of jurisdiction. However, unlike the majority, it argues that striking the correct balance between s 15’s ‘because of’ wording and broad policy rationale, requires an apportionment of causes at quantum. Furthermore, Scott’s ‘traditional lines’ and ‘non-career partner’ terminology creates unnecessary confusion and should be eschewed.

Haradasa, Tasneem, Causation in Section 15 of the Property (Relationships) Act 1976: Analysing the New Zealand Supreme Court’s ‘Working Assumption’ – Is It Really Working? (February 7, 2019), (2019) 50 Victoria University of Wellington Law Review 77.

Sandy Steel, ‘Compensation and Continuity’

This paper is about the justification of moral duties to compensate. It examines one family of justifications for these duties – justifications which hold that the duty to compensate is justified as a continuation of the original duty breached, the reasons justifying that duty, or the right infringed or violated. It clarifies these accounts, tests them against largely undiscussed objections, and offers a qualified defence.

Steel, Sandy, Compensation and Continuity (July 18, 2019). Oxford Legal Studies Research Paper, forthcoming.

Pauline Ridge, ‘Modern Equity: Revolution or Renewal from Within?’

Peter Birks spearheaded a revolution in thinking about Equity. This paper questions how successful that revolution has been. Two narratives of modern Equity are identified: the revolutionary narrative commenced by Birks and one counter-narrative that is apparent in contemporary case law. Three particular strands of these narratives are then discussed. They concern the integration of the Common Law and Equity; conscience-based reasoning; and judicial method. Illustrations are taken largely from the law governing third party ancillary liabilities that protect equitable rights. Claims against recipients of property protected by Equity, particularly the claim for unconscionable retention of benefit following receipt of misappropriated trust property, are used to illustrate the integration of the Common Law and Equity and the use of conscience-based reasoning. Judicial method is discussed in the context of equitable accessory and recipient liability. Reference is also made to the doctrine of undue influence, the change of position defence, mistaken gifts and private law claims tainted by illegality.

Ridge, Pauline, Modern Equity: Revolution or Renewal from Within? (December 19, 2016) in Sarah Worthington, Andrew Robertson and Graham Virgo (eds), Revolution and Evolution in Private Law (Hart Publishing, 2018); ANU College of Law Research Paper No 19.14.

Robert Anderson, ‘A Property Theory of Corporate Law’

… This Article argues that property law provides the missing piece of the contractarian puzzle in demarcating the boundaries of corporate law and explaining the distinctive features of corporate law. In this conception, the corporation is an ownership structure – a device for turning a messy set of property, contractual, and other in personam claims into an orderly package of in rem property rights, called ‘shares’. The in rem structure depersonalizes these rights, allows the rights to be divided and transferred without contractual assent and without entanglement with the personal attributes of the holder. The key to the property nature of this ownership interest is the residual control – voting rights – that solidify the status of common stock as a property interest rather than a contractual interest.

The property theory’s assertion that claims on the corporation are a mix of property and contract rights provides traction in otherwise slippery areas of corporate law. If there is a line to be drawn between contract and property, this dividing line identifies the boundaries of distinctively corporate law from corporate-tinged contract law. Accordingly, the rationale for shareholder-only fiduciary duties is not primarily that shareholders are the residual claimants in the economic sense, but because they have an ownership interest unique among corporate claimants. The property theory of corporate law best explains many features of corporate law and clarifies otherwise murky line drawing exercises in fiduciary duties.

Anderson, Robert, A Property Theory of Corporate Law (July 16, 2019).

Jill Robbie, ‘Moving Beyond Boundaries in the Pursuit of Sustainable Property Law’

… In this chapter, I consider the reform of property rights regarding water, otherwise known as private water rights, in the context of sustainability. Reflecting the global trend, there are mounting, urgent, multi-dimensional challenges facing water which threaten this vital resource. In the World Wide Fund for Nature’s Living Planet Report 2018 it was stated: ‘Freshwater habitats, such as lakes, rivers and wetlands, are the source of life for all humans yet they are also the most threatened, strongly affected by a range of factors including habitat modification, fragmentation and destruction; invasive species; overfishing; pollution; disease and climate change’. Water has also been noted as being at the core of sustainable development. I will explore the interactions between three different policy spheres which relate to the reform of private water rights – each representing a pillar of sustainable development – in the particular context of small-scale hydro-schemes in Scotland. I argue that this micro-analysis has macro-implications, and that this case study shows that we must move beyond multiple boundaries in reforming our property laws in order to contribute to the transition to sustainability.

Robbie, Jill, Moving Beyond Boundaries in the Pursuit of Sustainable Property Law (June 11, 2019), forthcoming in Bram Akkermans and Gijs van Dijck (eds), Private Law and Sustainability (2019).

Aplin and Pasqualetto, ‘Artificial Intelligence and Copyright Protection’

The proliferation of cultural creations using AI, and their increasing commodification, raises interesting questions from a copyright perspective. This paper addresses the copyright issues raised by works that are generated by AI. In particular, it assesses whether AI generated content may constitute an original, copyright protected work, and who is the author and owner of copyright in such a work, if at all. This is done from the perspective of international, EU and domestic copyright law (UK, France and US). The paper suggests that there is sufficient copyright protection for AI generated content such that reforms to the system are probably not needed.

Aplin, Tanya F and Pasqualetto, Giulia, Artificial Intelligence and Copyright Protection (May 1, 2019) (forthcoming in 2019; accepted) in Ballardini RM, Kuoppamäki P and Pitkänen O, Regulating Industrial Internet through IPR, Data Protection and Competition Law, Kluwer Law International.

Gentry and McMichael, ‘Responses to Liability Immunization: Evidence from Medical Devices’

The Supreme Court’s decision in Riegel v Medtronic unexpectedly and immediately immunized medical device manufacturers from certain types of state tort liability. Riegel immunized manufacturers from liability if their devices had been approved through the Food and Drug Administration’s most rigorous|and costly|review process, premarket approval (‘PMA’). Exploiting this unanticipated decision, we examine whether manufacturers strategically respond to this new immunity. We find evidence that, following the Riegel decision, device manufacturers file more PMA applications for high risk product categories (relative to the comparable change for low risk categories), suggesting that firms are sensitive to the newly immunized risk. We additionally find evidence that physician treatment patterns with respect to medical devices also change, consistent with Riegel shifting liability away from device manufacturers and towards physicians. The analysis provides evidence that sophisticated actors respond to changes in their expected legal liability and that technical legal decisions have important ramifications for the provision of health care.

Gentry, Elissa Philip and McMichael, Benjamin J, Responses to Liability Immunization: Evidence from Medical Devices (July 15, 2019).

‘John Gardner 1965-2019’

“It is with great sadness that the Faculty of Law reports the death of Professor John Gardner FBA, Professor of Law and Philosophy and Fellow of All Souls College. Born in 1965 in Glasgow, John Gardner studied at the Glasgow Academy 1970-1982, and came up to New College in 1983. He took a First in the BA in Jurisprudence in 1986, and on the BCL he was the Vinerian Scholar in 1987 …” (more)

[Timothy Endicott, Oxford Faculty of Law, 12 July]

‘Should Government Compensate Street Gangs for the Loss of “Identity Property?”’

Lua Kamál Yuille, Manufacturing Resilience on the Margins: Street Gangs, Property and Vulnerability Theory, 123 Penn State Law Review 63 (2019). Frank Rudy Cooper reminds us that, ‘We are born unable to protect ourselves, we become feeble with age, we must fear natural disasters, and our social institutions might work against us’. Vulnerability is the inescapable condition of all humankind that compels us to construct various means of mitigating that vulnerability through ‘resilience’. The creation and accumulation of property is one of the ways in which we buffer ourselves against our own fragile natures and the threatening forces of the world around us. In her recent article, Professor Lua Kamál Yuille confronts vulnerability and property-centered modes of resilience in a compelling reframing of the modern street gang as a creator of ‘identity property’ … (more)

[Jamila Jefferson-Jones, JOTWELL, 18 July]