Monthly Archives: May, 2024
David Rosenberg, ‘Indigenization of Civil Litigation: Barriers and Opportunities’
ABSTRACT This paper considers the Indigenization of civil litigation as a means to promote decolonization and reconciliation within the Canadian legal framework. In light of the growing proximity of Indigenous to non-Indigenous communities, the task of Indigenization has taken on a new urgency. However, there are many obstacles to the goal of Indigenization. Two barriers […]
Marie-France Fortin, ‘Introduction to The King Can Do No Wrong – Constitutional Fundamentals, Common Law History, and Crown Liability’
ABSTRACT ‘The king can do no wrong’ remains one of the most fundamental yet misunderstood tenets of the common law tradition. Confusion over the phrase’s historical origins and differing meanings has had serious consequences, making it easier for the state to escape liability for the harm caused to individuals by governmental officials or institutions. This […]
Kapur and Trehan, ‘A Course Correction on Liquidated Damages in India’
ABSTRACT The law on liquidated damages and penalties, in the words of Lord Neuberger and Lord Sumption, is ‘an ancient, haphazardly constructed edifice which has not weathered well’. Diplock LJ declared that he could make no attempt, where so many others have failed to rationalize this common law rule. This paper will look at the […]
Michael Goodyear, ‘Infringing Information Architectures’
ABSTRACT Information architectures – systems that facilitate storing and sharing data and content – underpin daily life, from streaming sites like Netflix and Hulu to social media platforms like Instagram and TikTok. But since the printing press, these systems and their novel features have challenged the bounds of copyright law, leading to accusations that providers […]
‘Nuisance and the “but for” test’
Japanese Knotweed (‘JKW’) is bad news for homeowners. Treatment is costly, takes a long time and while it can be managed, it seems that JKW cannot be wholly eradicated. Davies v Bridgend County Borough Council ([2024] UKSC 15) concerned a claim by Mr Davies in respect of an encroachment of JKW from the neighbouring land […]
Samuel Freeman, ‘A Response to David Blankfein-Tabachnick and Kevin A Kordana, “On Rawlsian Contractualism and the Private Law’”
INTRODUCTION In their 2022 essay, David Blankfein-Tabachnick and Kevin Kordana reaffirm and further develop their long-standing position that John Rawls’s principles of justice, including the difference principle, should apply to determine and interpret private law, including not just property and contract law, but also torts. In recent papers, Samuel Scheffler and I have made similar […]
Ahmad Swaiss, ‘Fork in the Road: Should the UK Embrace a Codified Commercial Law System?’
ABSTRACT The persistent discourse surrounding the codification of UK commercial law presents a compelling yet intricate proposition. This Article embarks on a rigorous legal analysis, navigating the labyrinth of arguments and potential consequences associated with such a transformative undertaking. It dissects the alluring promise of clarity and consistency inherent in codification, while meticulously counterbalancing it […]
‘Duress in Contract and Restitution for Unjust Enrichment: Lessons from Mistake’
… This article is highly recommended. From a similar starting point, and drawing similar distinctions, I would go further. In the law of Contract, the mistake that will render a contract void at law is a fundamental one (see, eg, Bell v Lever Bros Ltd [1932] AC 161, [1931] UKHL 2 (15 December 1931); Fitzsimons […]
Bregant and Dillof, ‘Fairness and Uncertainty in Torts: A Theoretical and Empirical Inquiry’
INTRODUCTION Is torts ready for a revolution? Momentous changes in law are exceedingly rare. In torts, one such change was the advent of comparative fault. Originally codified in the early twentieth century, comparative fault represented a revolutionary shift away from all-or-nothing recovery. For the first time, a plaintiff’s recovery need not be either her full […]
Mark Giancaspro, ‘Coffin confessions and contract: Why agreements to divulge secrets post-mortem might be unenforceable’
ABSTRACT Death and taxes are not only life’s two guarantees but also lucrative industries. The former has historically been dominated by morticians and funeral directors but now ‘coffin confessors’ have entered the market. These professionals are engaged to divulge specified information at the client’s funerary service, normally in an abrasive or humorous manner, for a […]