Monthly Archives: January, 2021

‘Corporations and Contracts: Continuing to Beat this Drum’

“I’ve previously lamented the blurring of the lines of corporate and contract law, usually arising in the context of forum selection provisions in bylaws or charters that are treated as indistinguishable from ordinary contracts. My most recent post on this concerned the dismissal of a Section 11 case against Uber; shortly thereafter, another California court […]

Arthur Ripstein, ‘The Contracting Theory of Choices’

“In The Choice Theory of Contracts, Hanoch Dagan and Michael Heller announce that their aim is to persuade the reader, ‘to adopt a liberal view of contract law. To achieve this goal, this book offers choice theory, an approach that departs from contemporary accounts in two ways: it analyzes the field as a whole and […]

Shy Jackson, ‘Good Faith under English Law: Evolution or revolution?’

ABSTRACT The doctrine of good faith is not part of the general English law of contract and has a very limited role in the legal framework that applies to commercial relationships, including construction contracts. That position however has been slowly changing and this paper examines how the concept of good faith has been developing in […]

David Erdos, ‘Identification in EU Data Protection Law’

ABSTRACT Although the new EU data protection framework includes new pan-European limits based on notions of non-identification, these provisions cannot be construed in a sweeping or linear fashion. Non-identified data can only include information which is not being used to target a specific individual on- or offline and which does not readily and manifestly enable […]

Sarah Burstein, ‘Whole Designs’

ABSTRACT In the past decade, there has been a renewed interest in the concept of patentable subject matter – that is, what kinds of things can you get a patent for? But this attention has, to date, been focused on utility patents, the patents that protect how things work. There has been scant attention paid […]

Liew and Yu, ‘The Unconscionable Bargains Doctrine in England and Australia: Cousins or Siblings?’

ABSTRACT In discussions concerning the modern equitable unconscionable bargains doctrine, judges and commentators often draw seamlessly from English and Australian law as though they are siblings from the same family. In reality, their doctrinal elements are substantively and substantially different, and these reflect three core points. First, English and Australian law respectively imposes a negative […]

Call for Papers and Posters: ‘A Sacred Covenant? Historic, Legal and Cultural Perspectives on the Development of Marital Law’: virtual event, 20 May 2021

We seek to explore the changing legal and cultural definitions of marriage in any geographical location or jurisdiction across the period c 1450 – present day, paying particular attention to the changing perspectives on age, same-sex marriage, polygamy, divorce, and remarriage. This conference will create an exciting space where historical, literary, medical, artistic, and cultural […]

‘The Multiple Faces of Textualism’

Tara Leigh Grove, Which Textualism?, 134 Harvard Law Review 265 (2020). In her wonderfully-titled article, ‘Which Textualism?’, Tara Leigh Grove uses the recently decided Bostock v Clayton County case to highlight a truth about statutory interpretation theory that scholars have largely ignored: Textualism is not a monolithic interpretive approach, but one that contains multiple competing […]

Ole Aldag, ‘Due Diligence and Environmental Damages Under Rome II’

ABSTRACT Within the European Union, the Rome II Regulation determines the applicable law on cross-border matters of non-contractual nature. The paper examines the applicable law on environmental-related tort claims against European multi-national companies utilizing production facilities in third countries, either based on active misconduct or on alleged omission of environment-related due diligence. As these types […]

Ying Khai Liew, ‘Limitation Periods and Constructive Trusts in Malaysia’

ABSTRACT Malaysia, as a former British colony, has inherited much of its trusts law from the English. One notoriously difficult area of law is constructive trusts. Precisely when and why constructive trusts arise are fundamental but imperfectly understood matters. This is unfortunate, because the lack of understanding might, in practice, be critically relevant for the […]