Monthly Archives: November, 2016

‘I Can Explain That’

James Goudkamp and John Murphy, The Failure of Universal Theories of Tort Law, 21 Legal Theory 47 (2015), available at SSRN. Richard Posner has claimed that tort law is best understood as a means of incentivizing actors to take cost-efficient precautions against inflicting losses on others. ‘Not so!’ says Ernest Weinrib, who insists that tort […]

‘New Dutch bill on collective damages action’

“On 16 November 2016 the Dutch Ministry of Justice presented to Parliament a new Bill for collective damages actions. The proposal aims to make collective settlements more attractive for all parties involved by improving the quality of representative organizations, coordinating the collective (damages) procedures and offering more finality. It is unclear when or whether the […]

Amir Licht, ‘Lord Eldon Redux: Information Asymmetry, the Roots of Accountability, and the Structure of Fiduciary Loyalty’

Abstract: This article investigates the development of accountability and fiduciary loyalty as an institutional response to information asymmetries in agency relations, especially in firm-like settings. Lord Eldon articulated the crucial role of information asymmetries in opportunistic behaviour in early nineteenth century, but its roots are much older. A thirteenth century trend toward direct farming of […]

Richard Hooley, ‘Contractual Estoppel and the Misrepresentation Act 1967’

Abstract: Contractual estoppel has been developed in the context of the exclusion of liability for misrepresentation. It provides a legal explanation for the validity of ‘no representation’ and ‘no reliance’ clauses, which may contradict the true state of affairs and prevent a claim for misrepresentation arising. The importance of contractual estoppel does not end there […]

Martin and Nissenbaum, ‘Privacy of Public Data’

Abstract: The construct of an information dichotomy has played a defining role in regulating privacy: information deemed private or sensitive typically earns high levels of protection, while lower levels of protection are accorded to information deemed public or non-sensitive. Challenging this dichotomy, the theory of contextual integrity associates privacy with complex typologies of information, each […]

Richard Dole, ‘The Contours of American Trade Secret Law: What Is and What Isn’t Protectable as a Trade Secret’

Abstract: This article is the first thorough comparison of the definition of trade secret in the Uniform Trade Secrets Act, which has been enacted in 47 states, with the principal nonuniform amendments adopted by various states, and with the subsequent definitions of trade secrets in the federal Economic Espionage Act, the Restatements of Unfair Competition […]

‘Equity, the Judicial Power, and the Problem of the National Injunction’

Samuel L Bray, Multiple Chancellors: Reforming the National Injunction (2016), available at SSRN. Samuel Bray’s newest article tackles a topic of serious concern. The national injunction is an injunction against the enforcement of a federal statute or regulation against all people nationwide, not simply to protect the plaintiffs in one case. It is a powerful […]

Richard Lewis, ‘Tort tactics: an empirical study of personal injury litigation strategies’

Abstract: This paper reveals some of the tactics that lawyers may use when conducting personal injury litigation. The research is empirically based by being drawn from structured interviews with a cross-section of practitioners. This qualitative evidence helps to place the rules of tort in a wider context and suggests that tactical considerations may affect the […]

Frederick Wilmot-Smith, ‘Reasons? For Restitution?’ (review article)

“Charlie Webb, Reason and Restitution, Oxford: Oxford University Press, 2016, 272 pp, hb £60.00. The law of unjust enrichment is a subject of intense doctrinal debate. While it has received increasing theoretical attention, deep disagreement remains about its conceptual and normative roots. Charlie Webb’s Reason and Restitution, the product of many years’ work, provides a […]

Joanna McCunn, ‘Belize It or Not: Implied Contract Terms in Marks and Spencer v BNP Paribas

Abstract: In Marks and Spencer v BNP Paribas, the Supreme Court restated the law on the implication of terms in fact, rejecting the previously authoritative approach taken by Lord Hoffmann in Attorney General of Belize v Belize Telecom Ltd. This article examines two major departures from Belize in Lord Neuberger’s leading judgment: the treatment of […]