Monthly Archives: May, 2018

Paul Miller, ‘Equity as Supplemental Law’

Abstract How, in general terms, ought we to understand equity’s contributions to law? Most contemporary equity theorists endorse a broadly remedial conception of equity. The remedial conception suggests that equity is a handmaiden to law in the pursuit of justice. Equity, so understood, is not itself law in a conventional sense. Instead, equity intervenes in […]

Chakravarty, Kelsey and Teitelbaum, ‘Tort Liability and Unawareness’

Abstract Unawareness is a form of bounded rationality where a person fails to conceive all feasible acts or consequences or to perceive as feasible all conceivable act-consequence links. We study the implications of unawareness for tort law, where relevant examples include the discovery of a new product or technology (new act), of a new disease […]

Hiro Aragaki, ‘Arbitration: Creature of Contract, Pillar of Procedure’

Abstract It is difficult to quarrel with the refrain that ‘Arbitration is a creature of contract’. Unlike the default of public litigation, arbitration is a private process that requires voluntary choice to get off the ground. But while arbitration may originate in a contract, it lives out its life as a procedure. All the arbitration […]

JB Heaton, ‘Risk Neutral Justice’

Abstract Many litigants – especially individual natural persons – are probably risk averse in litigation. But risk aversion is a personal characteristic that is unrelated to the merits and makes the risk averse litigant act ‘as if’ he is more pessimistic about the true probability of prevailing. As a result, many litigation outcomes are biased […]

Goldberg and Zipursky, ‘From Riggs v Palmer to Shelley v Kraemer: The Continuing Significance of the Law-Equity Distinction’

Abstract This chapter begins with a sharp distinction between two kinds of judicial authority – the authority to apply law and to do equity. Plaintiffs who file suit on a claim of legal right assert an entitlement to recourse from the defendant, and to judicial assistance in obtaining it. By contrast, equitable claims request a […]

‘Does Copyright Have a Framing Problem?’

Margot E Kaminski and Guy A Rub, Copyright’s Framing Problem, 64 UCLA Law Review 1102 (2017). Numerous provisions of the Copyright Act of 1976 (‘1976 Act’) use the term ‘work’ as a key referent for determining copyrightability, ownership, scope of rights, limitations on scope, and remedies. Yet, Congress did not provide a general-purpose definition of […]

‘Defining Smart Contracts – The Search for Workable Legal Categories’

“Several scholars have started to investigate the topic of smart contracts. To be sure, the notion has been in circulation for several years, long before the current blockchain revolution to which its revival is linked. In fact, the original meaning of ‘smart contract’ is different from that which it has acquired in connection with blockchain […]

Horst Eidenmueller, ‘Collateral Damage: Brexit’s Negative Effects on Regulatory Competition and Legal Innovation in Private Law’

Abstract This article attempts to assess the consequences of Brexit for English and European private law. More specifically, I am interested in how the level of legal innovation in private law will be influenced by Brexit. I argue that Brexit will reduce the level of efficiency-enhancing legal innovation in Member States’ and European private law. […]

Samuel Bray, ‘Fiduciary Remedies’

Abstract This chapter offers an overview and analysis of fiduciary remedies. The remedies considered are accounting for profits, constructive trust, equitable compensation (also called equitable damages, damages, or surcharge), injunction, unwinding remedies (eg, rescission), and supervisory remedies (eg, instruction, removal). The chapter also considers three major unsettled questions: whether the remedial aims of fiduciary law […]

Andrew Hicks, ‘Do Constructive Trusts Deter Disloyalty?’

Abstract Constructive trusts of disloyal fiduciary gain often are justified by the argument of deterrence. For there to be effective deterrence two conditions must be satisfied: first, potentially disloyal fiduciaries must be sufficiently informed, directly or indirectly, of the properties of the constructive trust; secondly, fiduciaries must respond by accurately weighing the costs/benefits of disloyalty […]