Jeffrey Lipshaw, ‘Between Rights and Rites: The Ironies of Crisis and Contract’

This is a contribution to the Law and Contemporary Problems symposium issue, ‘Contract in Crisis’, reflecting on contract law and the COVID-19 pandemic.

Is the institution of contract law in crisis? Contract and other rights are an institution of the Gesellschaft, the sociologist Ferdinand Tönnies’s metaphor for modern society. There entitlements reify in abstract principles and rules, whether or not the state enforces them. Moral and social norms, customs, and courtesies are more evocative of the Gemeinschaft, the corresponding metaphor for the traditions of religion, family, tribe, or community. The irony is the similarity between appeals to authoritative sources, whether legal or divine. The arc of history is only metaphorically from Gemeinschaft to Gesellschaft. We can still react to crises, like financial meltdowns or global pandemics, by the invocation of rights or the granting of courtesies. This essay considers whether the reification of entitlements in legal rights (including contract) contributes or detracts from our ability to get along in a reasonable and humane way. The ‘crisis’ is far less about elements of doctrine than it is of morality; less about the enforcement of rights and more about the holders’ willingness to set them aside. During crisis, tunnel-visioned and slavish devotion to abstract contract rights may well be a culprit, not a hero.

Lipshaw, Jeffrey M, Between Rights and Rites: The Ironies of Crisis and Contract (July 21, 2021). Law and Contemporary Problems, forthcoming.

‘Important new High Court judgment on data breach litigation’

“The High Court (Saini J) has today handed down judgment in Warren v DSG Retail Ltd [2021] EWHC 2168 (QB). It is pithy and important stuff for data protection litigation, especially as regards accidental data breaches and the recoverability of ATE premiums. The case concerned a low-value claim brought against Dixons Carphone (‘DSG’) in relation to a 2018 data breach, in which external cyber-attackers had penetrated DSG’s systems. The claim was brought in misuse of private information, breach of confidence, breach of the Data Protection Act 1998, and negligence …” (more)

[Robin Hopkins, Panopticon, 30 July]

Tatiana Cutts, ‘Possessable Digital Assets’

I respond here to questions within the Electronic Trade Documents (2021) Law Commission Consultation Paper No 254, and the Digital Assets call for evidence (2021). I make specific recommendations regarding the criteria for possession, and argue that there is a case for extending liability in conversion to some digital assets (those identified by the relevant criteria).

Cutts, Tatiana, Possessable Digital Assets (July 28, 2021). LSE Law – Policy Briefing Paper No 47.

Baker, Avraham and Sebok, ‘The Mysterious Market for Post-Settlement Litigant Finance’

Litigant finance is a growing and increasingly controversial industry in which financial firms advance a plaintiff money in exchange for ownership rights in the proceeds of the legal claim on a nonrecourse basis: A plaintiff must repay the advance only if compensation is ultimately received for the legal claim. The nonrecourse nature of this funding exempts it from most states’ consumer credit laws, enabling funders to charge higher interest and fees than would otherwise be permitted. When this funding involves ordinary consumers, critics of the industry contend that the uncapped interest rates exploit vulnerable litigants, while its defenders argue that the availability of these cash advances improves the welfare of consumers, especially those who have no other credit options.

This funding made headlines during the recent NFL concussion litigation, with more than one thousand players reported to have received such cash advances and with class counsel raising concerns of ‘predatory lending’. Because the industry has not been forthcoming with facts, the larger policy debate thus far has largely relied on anecdotes and speculation. In addition, the debate has ignored the important differences between pre- and post-settlement litigant funding …

Baker, Lynn A and Avraham, Ronen and Sebok, Anthony J, The Mysterious Market for Post-Settlement Litigant Finance (July 27, 2021). 96 New York University Law Review Online (forthcoming 2021), University of Texas Law, Law and Economics Research Paper forthcoming, University of Texas Law, Public Law Research Paper forthcoming, Cardozo Legal Studies Research Paper forthcoming.

Burkhard Hess, ‘Reforming the Brussels Ibis Regulation: Perspectives and Prospects’

According to article 79 of Regulation (EU) 1215/2012, the EU Commission shall present a report on the application of the Brussels Ibis Regulation by 11 January 2022. This paper intends to open the discussion about the present state of affairs and the necessary adjustments of the Regulation. Although there is no need to change its basic structure, the relationship of the Brussels Ibis Regulation with other EU instruments (as the General Data Protection Regulation) should be reviewed. There is also a need to address third-State relationships and cross-border collective redress. In addition, the paper addresses several inconsistencies within the present Regulation evidenced by the case law of the CJEU: such as the concept of contract (article 7 no 1), the place of damage (article 7 no 2), the protection of privacy and the concept of consumers (articles 17-19). Finally, some implementing procedural rules of the EU Member States should be harmonised, ie on the assessment of jurisdiction by national courts, on judicial communication and on procedural time limits. Overall, the upcoming review of the Brussels Ibis Regulation opens up an opportunity to improve further a central and widely accepted instrument of the European law of civil procedure.

Hess, Burkhard, Reforming the Brussels Ibis Regulation: Perspectives and Prospects (July 27, 2021). MPILux Research Paper 2021(4).

‘New Judgment: X v Kuoni Travel Ltd [2021] UKSC 34’

“The Supreme Court unanimously allowed this appeal concerning whether a hotel employee working for the respondent was in breach of contract after having raped and assaulted the defendant, and/or gave rise to liability under the Contract and the Travel, Package Holidays and Package Tours Regulations 1992 (‘the Regulations’) …” (more)

[UK Supreme Court Blog, 30 July]

‘What’s happening with proposals for a WTO waiver of COVID-related IP?’

“If COVID-19 were a pandemic movie, we’d be very close to the end since we’ve identified several excellent vaccines; the conventional biomedical innovation narrative often ends with the product being fully developed. But we’ve still got a long way to go with COVID-19, and the biggest challenge is getting the vaccines to billions more people (and getting them to take the vaccines, but that’s a separate topic). Only 0.3% of global doses have been administered in low-income countries, many of which are confronting severe outbreaks …” (more)

Nicholson Price, Rachel Sachs, Jacob S Sherkow and Lisa Larrimore Ouellette, Written Description, 30 July.

‘Taking Governments to Court: Climate Litigation and its Consequences’

“The volume of climate cases brought against national governments is on the rise. In many such cases, courts have found in favour of those endeavouring to force states to radically improve on commitments to tackle the effects, and limit the extent, of anthropogenic climate change. Climate policymaking is not a matter for the judiciary, but where policy has been formed, courts can have an important role in its supervision and enforcement. This paper begins by offering a detailed assessment of three landmark European cases: the Urgenda case (2019), taken in the Netherlands; the Friends of the Irish Environment case in Ireland (2020); and Neubauer et al in Germany (2021) …” (more)

[Institute of International and European Affairs, 30 July]

‘Amendment of German patent law: small step or giant leap for proportionality?’

“As readers may know, the German parliament recently adopted amendments of the German Patent Act (GPA) as the final step of a reform process that spanned nearly two years [final version (German) here, earlier Katpost here, news coverage here]. Though the amendment contains various reforms – including an effort obtain quicker validity decisions to close the ‘injunction gap’, see here – probably the most salient change is to §139, on the patentee’s entitlement to an injunction …” (more)

[Léon Dijkman, The IPKat, 30 July]

‘The moral hazard of limited liability’

“Moral hazard occurs when the ‘costs’ of a bad outcome of a (predictable) risk fall, in part or in whole, on someone other than those taking the risk, while at the same time benefiting from good outcomes. If the probabilities of that risk can be ascertained in advance, then, in principle, the risks can be insured and the risk taker will have to pay a higher premium, for example for obligatory flood insurance on a house built by a river. In this case, the moral hazard would then disappear. Otherwise, moral hazard leads those subjected to it to take excessive risks …” (more)

[Charles Goodhart, Vox, 30 July]