Monthly Archives: March, 2019

Karmen Lutman, ‘Change of Position as a Defence in Unjust(ified) Enrichment: Slovenian Law in a Comparative Perspective’

ABSTRACT If one person is enriched at the expense of another and there is no legal ground for retaining this enrichment, the law imposes an obligation of restitution upon the unjustly enriched recipient, which is subject to various defences. One of them is the defence that the defendant is no longer enriched (change of position). […]

Hannibal Travis, ‘Enjoining the Cloud: Equity, Irreparability, and Remedies’

ABSTRACT This article examines the tailoring of remedies in cases involving online infringement in particular. When websites communicate copyrighted works to members of the public or use trademarks unlawfully, domestic requirements of equitable relief come into tension with global enforcement cultures. Courts are sometimes persuaded to enjoin entire websites or to order the defendant and […]

Samuel Bray, ‘Remedies’

ABSTRACT This paper is a contribution to the Oxford Handbook of New Private Law. It offers an outline of the remedies available in US private law. It begins by canvassing the competing rationales offered for private law remedies, emphasizing as primary that the defendant is restoring the plaintiff to his rightful position. It then sketches […]

Call for Expressions of Interest: Modern Studies in Property Law Conference, Northumbria University, 15-17 April 2020

The 2020 conference will follow the pattern of previous Modern Studies in Property Law conferences with a mix of plenary, discussion and panel sessions, and will also incorporate the social and human side of property law through the consideration of emerging technologies and the involvement of spokespersons and presentations from social housing schemes, shared equity […]

Simon Whittaker, ‘Unfair Terms in Commercial Contracts and the Two Laws of Competition: French Law and English Law Contrasted’

ABSTRACT The laws controlling the fairness of the terms of non-consumer contracts in French and in English law have recently grown much further apart. French law has introduced two new general sets of controls modeled on the European consumer law test: the first in the Commercial Code governing all ‘commercial contracts’ and forming part of […]

Alon Cohen, ‘Informational Negligence Law’

ABSTRACT This article offers an analysis of negligence law in an environment with asymmetric information and costly signaling. We consider three possible variations of the negligence doctrine, based on its two elements – the standard of care and damages. We find that accounting for signaling costs affects the social desirability of the negligence rule. In […]

Gregory Klass, ‘Contracts, Constitutions, and Getting the Interpretation-Construction Distinction Right’

ABSTRACT Interpretation determines the meaning of a legal actor’s words or other significant acts, construction their legal effect. Using contract law and then two nineteenth century theories of constitutional interpretation as examples, this Article advances four claims about interpretation, construction, and the relationship between the two. First, many theorists, following Francis Lieber, assume that rules […]

‘Publication and Privacy Proceedings CFAs, abolition of success fees, some practical guidance’

“In November 2018, the Government announced that from 6 April 2019 conditional fee agreement (‘CFA’) success fees would no longer be recoverable from opponents in defamation and privacy claims. A statutory instrument (2018 No 1287) gave effect to that announcement. This means that success fees (but not ATE premiums) will cease to be recoverable for […]

Logan Page, ‘Write This Down: A Model Market-Share Liability Statute’

ABSTRACT The 1980s featured a remarkable series of lawsuits: the DES cases. The women who brought these cases had been harmed by a drug – DES – that their mothers had taken while the future plaintiffs were in utero. Hundreds of companies manufactured DES, each unit of DES sold was chemically identical, and the harmed […]

‘Cardozo’s Great Proximate Cause Decision?’

Kenneth S Abraham and G Edward White, ‘Recovering Wagner v International Railway Company‘, 34 Touro Law Review 21 (2018). Featuring the memorable phrase ‘Danger invites rescue’, Cardozo’s opinion in Wagner v International Railway Co is engaging and beautifully written. The same can be said of ‘Recovering Wagner v International Railway Company‘ (hereinafter ‘Recovering Wagner‘) – […]