Arthur Ripstein, ‘Political Independence, Territorial Integrity and Private Law Analogies’

Kant deploys analogies from private law in describing relations between states. I explore the relation between these analogies and the broader Kantian idea of the distinctively public nature of a rightful condition, in order to explain why states, understood as public things, stand in horizontal, private legal relations without themselves being private. I use this analysis to explore the international law analogues of the three titles of private right, explaining how territory differs from property, treaty from contract and the specific form of status relations bet,ween nations. I conclude with a brief discussion of the ongoing relevance of these horizontal relations.

Arthur Ripstein, Political Independence, Territorial Integrity and Private Law Analogies, Kantian Review, volume 24, special issue 4 (Special Issue on Kant and Law) December 2019, pp 573-604.

‘Australia’s proposed defamation law overhaul will expand media freedom – but at what cost?’

“Last Friday, Australia’s attorneys-general agreed on proposed amendments to the provisions which underpin Australian defamation laws. This means Australian governments have a plan for how to change defamation law. Politicians are spinning this as a ‘modernisation’ of laws that haven’t been changed in 15 years. Whether or not this would ‘modernise’ the law, these are media-friendly reforms that will make it harder for people to succeed in suing a news organisation in defamation …” (more)

[Michael Douglas, The Conversation, 1 December]

Wilthagen and Schoots, ‘Building TrusTee: The World’s Most Trusted Robot’

This essay explores the requirements for building trustworthy robots and artificial intelligence by drawing from various scientific disciplines and taking human values as the starting-point. It also presents a research and impact agenda.

Wilthagen, Ton and Schoots, Marieke, Building TrusTee: The World’s Most Trusted Robot (November 14, 2019).

‘Enjoy the Little Things’

Emily Kadens, Cheating Pays, 119 Columbia Law Review 527 (2019). According to Columbus, the protagonist of Zombieland (2009), ‘enjoy the little things’ is Rule #32 for surviving a zombie apocalypse. Professor Emily Kadens’ Cheating Pays explores the darker side of enjoying the little things against the backdrop of the 1622 trial of a London grocer, Francis Newton. Specifically, Professor Kadens argues that in the context of cheating by heavily networked commercial actors, it is the little things – small-scale but regular cheats in transactions with contracting partners- that pay off in the end. Small cheats are potentially more lucrative than large cheats because small cheats are unlikely to be discovered or may be discounted as mistakes even if discovered, the cheater can take steps to misdirect attacks on the cheater’s reputation, and contracting partners are unlikely to take significant measures to punish the small-scale cheater even after the cheats are discovered … (more)

[Daniel Barnhizer, JOTWELL, 29 November]

Achas Burin, ‘The positive duty of prevention in the common law and the Convention’

Twenty years after the Human Rights Act 1998 came into force, where are we in our understanding of the relationship between tort and human rights? This paper argues that we are not as far along in our understanding as we could be. The reason for that has been the methodology we used to understand the relationship, focused as it was around remedies, limitation and causation. This paper proposes a new approach, based around the right rather than the remedy. It aims to theorise one particular cause of action – the duty in Osman v United Kingdom – to exemplify this approach. For English lawyers, who have historically used the framework of the forms of action to understand our own law, it is argued that this a good way to comprehend the European jurisprudence.

Achas K Burin, The positive duty of prevention in the common law and the Convention, Legal Studies. DOI: Published online by Cambridge University Press: 27 November 2019.

Rónán Condon, ‘After Law Society v MIBI: Contextualism and Contracting in Irish Contract Law’

… In Law Society v MIBI and Greene v IRBC, two recent Supreme Court judgments, the Court stated that interpretation should not rest solely on ‘internal linguistic considerations’, and instead expounded a contextualist default legal position. However, while the Court has endorsed the modern approach to interpretation, the different opinions and judgments equivocate on just how far along the road to unswerving contextualism the Court is prepared to travel. What sets the different shades of contextualism apart is a certain reservation, expressed particularly in the main Law Society dissent and in Greene, doubting the relevance of the transactional context for ‘formal’ contracts. The Law Society majority, in contrast, held that while words should be taken seriously in their proper context, interpretation is always ‘holistic’.

The purpose of this article is to demonstrate that this apparently fine distinction is, in fact, of great importance for contract law. Questions of legal interpretation have long been a locus for broader discussions about how well contract law pursues its function. Assuming that contract law aims to facilitate parties’ agreements by giving effect to their reasonable expectations, the key question is whether contract law better obtains this objective through a default that emphasises the text or one which starts from the broader commercial context in which contracts are embedded. This difference of opinion between majority and dissenting opinions will be considered in part III in which the broad contextualist default position will be favoured because of its capacity to accommodate, as distinct from distort, a greater range of contracting practices including the relational contract. Before doing so it is necessary to put the plain meaning rule, along with ‘narrow’ and ‘broad’ contextualism, in relief by undertaking a survey of Irish case law. This exercise is not intended simply as one providing a summary of the law, but rather is one that seeks to illuminate the different legal approaches and their underlying assumptions …

€ (Westlaw)

Rónán R Condon. ‘After Law Society v MIBI: Contextualism and Contracting in Irish Contract Law’, The Irish Jurist: 2019, 62(62), 51-71.

Nick Sage, ‘Contractual Liability and the Theory of Contract Law’

… This article seeks to contribute to our understanding of contractual liability and to the ongoing debate about the relative merits of some of today’s leading contract theories. The article first considers the existing theories of contractual liability. It concludes that the Holmesian, instrumental and voluntarist accounts all suffer from similar difficulties. The rights-based account can avoid those difficulties, but it faces other problems of its own. The article then suggests that reflection on the difficulties that afflict the rights-based theory should prompt us to reconsider the proper target of a theory of contractual liability. That is, we should consider more closely the character of the liability standard that actually appears in the common law of contract, in order to identify what is truly distinctive about it. The article proceeds to develop a new understanding of contractual liability, which attends to aspects of it that theorists have tended to overlook. Once we attain a better understanding of the special character of contractual liability, the article contends, an alternative account of the phenomenon should fall into place. The article concludes by advancing an account based upon another very well-known general theory of contract law: the theory of contract as promise …

Nick Sage, Contractual Liability and the Theory of Contract Law, King’s Law Journal, 30:3, 459-488 (2019), DOI: 10.1080/09615768.2019.1686224.

Derek Whayman, ‘The Rectification (and Construction) of Computer-Generated Documents’

This article is a fresh consideration of the courts’ powers to construe or rectify defective written instruments, specifically where they are assembled by computer program (‘document assembly’ or ‘computer-generation’). This is where the computer takes instructions from a client – usually via a web form – and generates the document through a serious of logical programmatic instructions that in effect copies, pastes and fills in standard precedents with no human intervention. It is not concerned with electronic execution; these documents are manually executed by people. Nor does it address ‘smart contracts’. Smart contracts are, in essence, the reverse of document assembly, pre-assembled by humans into computer instructions and then executed by machine. Some of the issues are indeed shared, but the overall process is different, and this article focuses on document assembly. The risk is, of course, that the final document may not reflect the true intention of the party or parties if there is an error in the design of the program such that it produces incorrect output. The question is how the present law, designed for human drafters, can deal with document assembly …

Derek Whayman, The Rectification (and Construction) of Computer Generated Documents, King’s Law Journal, 30:3, 489-516 (2019), DOI: 10.1080/09615768.2019.1687930.

Ooi and Peng, ‘Cryptocurrencies and Code Before the Courts’

In the rapidly developing cyber sphere dominated by cryptocurrencies and code, it is perhaps not uncommon for firms to focus on cutting-edge technological developments leaving the law behind as an afterthought. B2C2 Ltd v Quoine Pte Ltd (‘B2C2’) 1 may serve as a timely reminder of the importance of the legal principles supporting e-commerce and Fintech. In the first case of its kind, B2C2 raised several key questions before the Singapore International Commercial Court (‘SICC’), seeking clarification on how the established legal concepts of breach of trust, mistake and unjust enrichment might apply in the context where an automated contract-forming software had produced unusual results. This decision represents the most comprehensive treatment by a Commonwealth court of the legal nature of cryptocurrencies and automated contract-forming software to date; a harbinger of further and more complex litigation to come, as disputes involving e-commerce and Fintech gradually start to reach the courts …

Vincent Ooi and Soh Kian Peng, Cryptocurrencies and Code Before the Courts, King’s Law Journal, 30:3, 331-337 (2019), DOI: 10.1080/09615768.2019.1676978.

Adarsh Vijayakumaran, ‘Legally Blocked: The Evolution and Legality of Smart Contracts’

India is undergoing a revolutionary period concerning, both its constitution and its legislative jurisprudence. At a time of this ascending transcendence, it would only be naïve, to not take note of the technological innovation and digital transformation that has immersed itself into the legal arena. An area of interest which would significantly prove its vitality regarding the same would be the much acclaimed Contract Law. At present, The Indian Contract Act along with the Information Technology Act, and Indian Evidence Act, unless otherwise is provided so, regulates and puts forth the beacon for a legally enforceable electronic contract in India. This Paper traces the need for a legal evolution in the understanding of Contract law to keep in pace with the technological transition, and also the legal complications associated with the blockchain-based Smart Contracts, and further explain the operation of smart contracts in the existing judicial prudence, and finally concludes with the need for an unprecedented effort to regulate this kinetic realm.

Vijayakumaran, Adarsh, Legally Blocked: The Evolution and Legality of Smart Contracts (August 21, 2019) in Raizada, S (ed) Advancement in Legal Research: Transdisciplinary Innovative Dimensions, New Delhi, KV Publishers, ISBN 978-81-934484-4-1.