Monthly Archives: September, 2024
David Dana, ‘Corporate Liability for Climate Change Adaptation Costs: A Market Share/Several Liability Approach’
ABSTRACT Allocating financial responsibility for climate change costs to major energy companies could happen in many fora – at the federal, state or international level, via legislation, treaties or adjudication. This Article explores the allocation in the context of state law climate adaptation cost suits in the United States, and argues that a market share/several […]
Alexandra Allen-Franks, ‘Discretion to Exclude Improperly Obtained Evidence in Civil Proceedings in England and Wales’
ABSTRACT Exclusion of improperly obtained evidence is often discussed in relation to criminal proceedings, but not civil proceedings, where concerns about wrongdoing of state actors and deprivation of liberty are not usually present. It is sometimes assumed that judges in civil proceedings in England and Wales had no discretion to exclude relevant and reliable evidence […]
Zachary Cooper, ‘The AI Authorship Distraction: Why Copyright Should Not Be Dichotomised Based on Generative AI Use’
ABSTRACT In both Europe and the United States, courts seek to deny copyright to works developed with Generative AI (GAI) tools, in an effort to maintain the functionality of the status quo. No decision could be more radical – namely, to create a dichotomy of rights between otherwise identical works. GAI tools are being widely […]
Michael Duff, ‘Reverberations of Magna Carta: Work Injuries, Inkblots, and Restitution’
ABSTRACT This article argues that workers in the United States have been unconstitutionally undercompensated for their work injuries for at least a century. This provocative fact, coupled with statistics showing that over 120,000 people per year die from workplace injury and occupational disease, suggests a looming post-pandemic struggle for better injury remedies and safer workplaces. […]
Jeong-Yoo Kim, ‘Seller Liability versus Platform Liability: Optimal Liability Rule and Law Enforcement in the Platform Economy’
ABSTRACT In this paper, we examine whether the platform as well as the sellers violating the intellectual property right (IPR) should be liable. We first show that platform liability is socially better if the number of potential victims is very large. This is mainly due to the general enforcement effect of the platform’s monitoring activity. […]
Alexander Boni-Saenz, ‘The Right to Fail’
ABSTRACT This Article explores the conceptual and legal dimensions of the right to fail, particularly the role of support in its conceptualization and operationalization. The right to fail is the entitlement to make choices about one’s own life, even when there is some nontrivial chance of negative consequences. The most natural normative foundation for it […]
Jodi Gardner, ‘Rethinking Risk-Taking: The Death of Volenti?’
ABSTRACT Volenti non fit injuria allows a negligent defendant to escape liability by showing that the claimant voluntarily and willingly accepted the risk in question. This article combines the theoretical limitations of the volenti defence with a case analysis of how its application has played out in the ‘real world’, and argues it is not […]
Glick, Lozada and Bush, ‘Law and Economics Fallacies: What Modern Economics Really Says About the Definition of Efficiency and the Measurement of Welfare’
ABSTRACT The fundamental originating principle of law and economics (‘L&E’) is that legal decisions should be (and are) based on maximizing efficiency. But L&E proponents do not define ‘efficiency’ as Pareto Efficiency – the way agreed to by most economists. A Pareto optimal condition is obtained when no one can be made better off without […]
Jasper Verstappen, ‘Regulating Unfair Commercial Practices in a Smart Contract Context’
ABSTRACT Emerging technologies can have an impact on legal frameworks that protect consumers. This article investigates the impact of smart contract technology on the European rules regarding unfair commercial practices. It analyses the manner in which legislatures can respond to such new technologies and the impact these technologies can have on the principles of functional […]
Monica Vessio and others, ‘InPerpetuity (Challenging Misperceptions of the Term “Smart Contract”)’
ABSTRACT In law, the term ‘smart contract’ has been used loosely with no one definition winning out. In an attempt to ameliorate this, the Law Commission of England and Wales has endeavoured to add the word ‘legal’ to ‘smart contract’. No relief is found in the computer coding world, where ‘smart contract’ is used to […]