Laura Seritti, ‘Online Shopping and Quality Problems: What Safeguards for Platform Users Under the EU Consumer Protection Regime?’

Digitalization constitutes one of the fundamental trends of this century. Compared for its disruptiveness to the Industrial Revolution and the advent of steam powered machines, the digitalization process has in fact touched the very essence of the value-creation mechanisms and consumption patterns of our economy and society. Online platforms have emerged as new key actors of the digital economy. As a consequence of their multifaceted nature, there is no consensus on a single clear-cut definition. Agreement exists, however, on …

Laura Seritti, Online Shopping and Quality Problems: What Safeguards for Platform Users Under the EU Consumer Protection Regime?, Journal of European Consumer and Market Law, volume 10, issue 5 (2021) pp 180–189.

Lee Bygrave, ‘Data Protection by Design and by Default’

This paper has been written as an entry to the forthcoming Oxford Encyclopedia of European Union Law. As such, it gives a concise presentation of the role of ‘Data Protection by Design and by Default’ (DPbDD), particularly as provided for under Article 25 of the EU General Data Protection Regulation (GDPR). The paper canvasses the rationale, heritage, and ambit of Article 25, together with criticisms of its utility. The overall argument advanced in the paper is that DPbDD is not just a simple rule inhering in the GDPR and other EU secondary legislation but a higher-order regulatory principle that also inheres in the EU constitutional fabric. Moreover, DPbDD is a key principle in European data protection law and thereby helps to rejuvenate and modernize the traditional ‘Fair Information Practice Principles’. Its central function is to ensure that the core norms of data protection law ‘stick’ and to spell out that this traction goes beyond simply undertaking a process or set of processes (assessment, planning, design, etc), but ultimately involves a result that secures data protection ‘on the ground’.

Bygrave, Lee A, Data Protection by Design and by Default (October 18, 2021). Accepted for publication in S Garben, L Gromley and K Purnhagen (eds), Oxford Encyclopedia of European Union Law (Oxford: Oxford University Press 2021), forthcoming, University of Oslo Faculty of Law Research Paper No 2021-19.

Ho-Po Crystal Wong, ‘Can’t Wait Any Longer? The Effects of Shorter Waiting Periods on Divorce and Remarriage’

Since the 1990s, many US states have enacted or lengthened the waiting periods required for parties to divorce with the goal of strengthening marriage or at least discouraging divorce. I use the length of time by which some states have shortened their waiting periods to analyze how such waiting periods affect remarriage rates. I find that when the waiting period is shortened to 1.5 years or less, remarriage rates decrease for relatively young people but increase for older people. To the extent that remarriage is pivotal for older women impoverished by divorce to recover economically and emotionally, my results suggest that – though longer waiting periods might preserve some marriages – a prolonged period might reduce the welfare of older divorced women by hampering their remarriage prospects.

Ho-Po Crystal Wong, Can’t Wait Any Longer? The Effects of Shorter Waiting Periods on Divorce and Remarriage, American Law and Economics Review, Published: 12 October 2021.

John Rimmer, ‘Smith and Philpott v Athol Administration Limited and others, the Milewood Purpose Trust (2021), CHP2020/93′

A body of case law has now developed in relation to the well-known jurisdiction of common law courts to intervene in voluntary dispositions where they are made on the basis of a serious mistake. But what about the situation where some consideration has been given for the disposition? Does the existence of significant, or any, consideration deny the equitable remedy?

John Rimmer, Smith and Philpott v Athol Administration Limited and others, the Milewood Purpose Trust (2021), CHP2020/93, Trusts and Trustees, Published: 13 October 2021.

Peter Lee, ‘Patent Law’s Externality Asymmetry’

Technologies such as social media, autonomous vehicles, and ‘big data’ analytics generate enormous benefits for society, but they also create substantial harms. Social media networks spread misinformation, autonomous vehicles threaten driving jobs, and predictive policing based on big data can lead to unreasonable searches and seizures. One of the most significant ways that technology impacts society is by producing externalities – external benefits and costs that a decisionmaker (such as an inventor) imposes on third parties without charge or compensation. Externalities can cause inefficient resource allocation, and the classic remedy is to ‘internalize’ such externalities by holding decisionmakers more accountable for the benefits and costs of their actions. Patents, which confer exclusive rights on new inventions, enable inventors to internalize a share of positive externalities from technology, thus maintaining incentives to invent. However, inventions also produce harms, and how patents treat negative externalities from new technologies has been largely overlooked. This Article is the first to extensively examine this issue. It argues that while patents internalize positive externalities associated with innovation, they do surprisingly little to internalize negative externalities. This Article refers to this underappreciated dynamic as patent law’s externality asymmetry …

Lee, Peter, Patent Law’s Externality Asymmetry (October 17, 2021). 43 Cardozo Law Review (forthcoming 2022).

Sarah Seo, ‘User’s Guide to History’

Historical knowledge is necessary to make informed policy choices, but history’s methods are unsuited for determining what, exactly, those policies should be. This chapter examines how historians have been contributing to the New Legal Realist project, identifies obstacles in translating historical conclusions into policy arguments, and explores specific ways that the past can inform the present. Although the discipline of history may not produce concrete policy proposals, it can help us to think more critically about present-day issues by envisioning alternative solutions inspired by the past, identifying problems that become more apparent in historical context, reframing questions that need asking, and exploring causation. By explaining how our laws and legal practices came to be, historians can identify problems and their origins, which is a crucial first step to figuring out what to do next.

Seo, Sarah, User’s Guide to History (January 20, 2020). Research Handbook on Modern Legal Realism, edited by Shauhin Talesh, Elizabeth Mertz, and Heinz Klug (Edward Elgar 2021).

Smith and Beswick, ‘Unjust Enrichment: Principle or Cause of Action?’

Despite a continuing stream of case law from all levels of Canada’s judiciary, there remain fundamental questions regarding the nature of unjust enrichment in Canada and the relationship between unjust enrichment and other private law causes of action. There is a view that unjust enrichment is a general principle that is expressed in a number of distinct causes of action. And there is a competing view that unjust enrichment is an autonomous unified legal test for recovering benefits conferred on defendants that are not justified in law.

The difference is whether the standard in question is applied directly to the facts proven or admitted in order to determine whether there is liability. If the answer to that question is yes, then we are dealing with a legal test. There are countless Canadian cases that treat unjust enrichment in this way. If the standard is a general principle, perhaps like ‘promises seriously made are binding in law’, then it is not directly applicable to the facts. Such a principle is rather an explanation for legal tests. In the case of the principle that ‘promises seriously made are binding in law’, it would explain why we have the law (legal tests) governing offer and acceptance and consideration for parol contracts, and why we have different legal tests governing the formalities required for deeds, in which promises may be binding without offer, acceptance, or consideration.

Justice McLachlin (as she then was) in Peel v Canada, [1992] 3 SCR 762 (SCC), 786, recognised ‘the difficult task of mediating between, if not resolving, the conflicting views of the proper scope of the doctrine of unjust enrichment’, and she proposed a way forward through compromise. Almost thirty years later, this middle path remains elusive as conflicting views over the doctrine of unjust enrichment persist in case law and legal scholarship.

Smith, Lionel and Beswick, Samuel, Unjust Enrichment: Principle or Cause of Action? (September 29, 2021). Restitution 2021, pp 1.1.1-1.1.15 (Vancouver: Continuing Legal Education Society of British Columbia, 2021).

Cass Sunstein, ‘Analogical Reasoning’

In law, the process of analogical reasoning appears to work in five simple steps. (1) Some fact pattern A – the ‘source’ case – has certain characteristics; call them x, y, and z. (2) Fact pattern B – the ‘target’ case – has characteristics x, y, and q, or characteristics x, y, z, and q. (3) A is treated a certain way in law. (4) Some principle or rule, announced, created, or discovered in the process of thinking through A, B, and their interrelations, explains why A is treated the way that it is. (5) Because of what it shares in common with A, B should be treated the same way. It is covered by the same principle. It should be clear that the crucial step, and the most difficult, is (4). Often analogical reasoning works through the use of incompletely theorized agreements, making (4) tractable. Some of the disputes about analogical reasoning reflect contests between Burkean and Benthamite conceptions of law.

Sunstein, Cass R, Analogical Reasoning (October 7, 2021).

‘Incorporating by reference? Be caring and as clear as the sky is blu’

“A cancellation clause in a signed mobile phone supply contract was considered unduly onerous and not fairly and reasonably drawn to the purchaser’s attention to be incorporated by reference. A mobile phone supplier, Blu-Sky, entered into a mobile phone supply contract with a social care provider, Be Caring, for the supply of 800 mobile phone connections with a monthly rental fee which the purchaser sought to cancel prior to connection to the network …” (more)

[Aaron Jones, Allen and Overy – Compact Contract, 18 October]

Kotzé and Boggenpoel, ‘Living Together as Neighbours: Rethinking the Reasonableness Standard in Nuisance Law Under the Constitution’

The Covid-19 pandemic, with its concomitant ‘stay at home’ catchphrase, has certainly made living together as neighbours in a constitutional dispensation more tangible. Conflicts between neighbours will inevitably increase, especially in a time when citizens from different social, cultural, customary or religious backgrounds and with different rights and interests are restricted to the boundaries of their properties as a result of the Covid-19 pandemic. The pandemic has provided us with the impetus to reflect upon the notion of ‘reasonableness’ in neighbour law, particularly nuisance law in the narrow sense. In this context the role of neighbour law is ordinarily to regulate the relationship between neighbours. Therefore, neighbour law is crucial in that it resolves conflicts that arise between neighbours due to their everyday use of their properties …

Tina Kotzé and Zsa-Zsa Boggenpoel, Living Together as Neighbours: Rethinking the Reasonableness Standard in Nuisance Law Under the Constitution, Potchefstroom Electronic Law Journal (PER/PELJ), 24, 1-32, 2021,