Nizan Packin, ‘Show Me the (Data About the) Money!’

Information about consumers, their money, and what they do with it is the lifeblood of the flourishing financial technology (‘FinTech’) sector. Historically, highly regulated banks jealously protected this data. However, consumers themselves now share their data with businesses more than ever before. These businesses monetize and use the data for countless prospects, often without the consumers’ actual consent. Understanding the dimensions of this recent phenomenon, more and more consumer groups, scholars, and lawmakers have started advocating for consumers to have the ability to control their data as a modern imperative. This ability is tightly linked to the concept of open banking – an initiative that allows consumers to control and share their banking data with service providers as they see fit. But in the US, banks have threatened to block the servers of tech companies and data aggregators – business entities that serve as the middlemen connecting FinTech companies and banks, enabling consumers to get more financial services – from accessing their customers’ data even if the customers agree to it. With no regulation or accepted standards for the ethical gathering and use of data, banks argue that limiting access helps them protect their clients’ privacy, improve their accounts’ safety, and promote consumer protection principles. Banks claim that FinTech apps collect more data than needed, store it insecurely, and sell it to others.

But the motivation of the big banks in advocating for such limitations may not be so pure. Banks do not want to relinquish competitive advantages, lose customers, or be held liable for data or fund losses. Witnessing resistance, tech companies are not sitting idly by waiting for banks to limit their data access. Instead, they are working on ways to outsmart banks’ blocking technology and use data aggregation services as a middleman. They also extended the fight into Washington, where regulators such as the Federal Trade Commission (FTC) and the Consumer Financial Protection Bureau (CFPB) are noticing how technology impacts consumer data flows and credit reporting issues. Advocating for consumers’ rights to control data, tech companies lobby for open banking.

Packin, Nizan Geslevich, Show Me the (Data About the) Money!, Utah Law Review: Volume 2020 : No 5, Article 4.

Felipe Jiménez, ‘A Formalist Theory of Contract Law Adjudication’

Formalism has a bad name. It is often seen as a naïve and unsophisticated approach to the adjudication of legal disputes. This negative view of formalism is widespread in American legal culture and has been particularly influential in contract law. This Article challenges this prevailing view and argues that a formalist theory of adjudication is the best approach to resolve contractual disputes.

The argument of this Article starts from the assumption that contract law is not morally justified because of its enforcement of promissory rights or some other dimension of interpersonal morality. Instead, like contemporary law and economics, this Article assumes as its starting point that the law of contracts is an instrumentally justified legal institution (ie, an institution justified because of its valuable social consequences). Starting from this assumption, this Article asks what approach to the adjudication of contractual disputes facilitates the achievement of contract law’s instrumental goals. Against the common assumption, the answer is that a formalist approach – the specific contours of which are set out below – would be instrumentally best. This is because formalism, with its commitment to an ex-post, rule-bound, doctrinalist, and modest approach to legal adjudication, has important instrumental benefits. Formalism contributes to simple, generalizable, and cost-effective decision-making; it is consistent with the institutional competence of courts; reduces the risks and overall costs of legal mistakes; and increases predictability, protecting contractual parties’ legitimate expectations. Moreover, formalism is an adequate means to deal with value pluralism and is consistent with the main values served by the law of contracts, such as autonomy and efficiency.

Thus, encouraging judges to make socially optimal decisions in contractual disputes might not be the optimal strategy. The overall socially optimal outcome might, instead, be achieved through a decision procedure that directs judges to decide by applying pre-existing doctrine and expanding it incrementally. If that is the case, then, despite their disagreement about contract law’s foundations, instrumentalist and formalist theorists might agree about the narrower question of how judges should decide contractual disputes.

Jiménez, Felipe, A Formalist Theory of Contract Law Adjudication, Utah Law Review: Volume 2020 : No 5, Article 1.

‘Article: The Remedial Approach to Proprietary Estoppel in Singapore’

“Ying Khai Liew recently published an article entitled, ‘The Remedial Approach to Proprietary Estoppel in Singapore’, Wills, Trusts, & Estates Law ejournal (2020). Provided below is the abstract to the Article. ‘This paper argues that the choice of remedial starting point in relation to proprietary estoppel is not simply a choice for claimants as matter of litigation strategy …'” (more)

[Gerry W Beyer, Wills, Trusts & Estates Prof Blog, 26 January]

Taorui Guan, ‘Evidence-Based Patent Damages’

… This Article brings the field one step closer to evidenced-based intellectual property law. It investigates one area – the law of patent damages. It tackles the unmet need to examine the factual basis behind the judicial doctrines for calculating patent damages. Under 35 USC§ 284, courts frequently use ‘reasonable royalty’ patent damages to compensate patentees for patent infringements. A reasonable royalty is calculated by mimicking the ways that patent licensing parties calculate royalties. Courts imagine the infringed patentee as a willing licensor and the infringer as a willing licensee. They then envision, ‘the terms of a licensing agreement reached as the result of a supposed meeting between the patentee and the infringer at the time infringement began’. Though such a meeting never happened, courts aim to determine the amount of royalties that the infringer would have paid the patentee had there been a negotiated agreement. This number becomes the award of patent damages that the infringer must pay the patentee. This approach is called ‘hypothetical negotiation’ …

Taorui Guan, Evidence-Based Patent Damages, 28 Journal of Intellectual Property Law 1 (2021).

Gelter and Puaschunder, ‘COVID-19 and Comparative Corporate Governance’

With the pandemic caused by the novel coronavirus SARS-CoV-2 raging around the world, many countries’ economies are at a crucial juncture. The COVID-19 external shock to the economy has the potential to affect corporate governance profoundly. This article explores its possible impact on comparative corporate governance. For an economy to operate successfully, a society must first find a politically sustainable social equilibrium. In many countries, historical crises – such as the Great Depression and World War II – have resulted in a reconfiguration of corporate governance institutions that set the course for generations. While it is not yet clear whether COVID-19 will have a similar effect, it is possible that it will change patterns of what kind of firms are – from an evolutionary perspective – likely to survive, and which ones are not. We argue that to some extent, it will accelerate ongoing trends, whereas in other areas it put corporations on an entirely new course. We observe three trends, namely the need for resilience, a growth of nationalist policies in corporate law, and an increasing orientation toward ‘stakeholder’ interests. First, firms will have to become resilient to the crisis, and consequently long-term oriented. Corporations that are not operating merely on an arm’s length capital market basis but are integrated into a network, generated by core shareholders, state ownership or bank lending may be more likely to survive. In addition, firms are beginning to interact with their workforce differently in their attempts to maintain what could be called ‘healthy human capital’. Second, we are likely to see a resurgence of nationalism in corporate governance to ensure that foreign ownership and interconnected supply chains do not put national security at risk. Third, the existing critiques of inequality but also climate change awareness will accelerate the trend toward a broadening of corporate purpose toward ‘stakeholderism’ and public policy issues. As in the past years, institutional investors acting as ‘universal owners’ will play a role in shaping this trend.

Gelter, Martin and Puaschunder, Julia M, COVID-19 and Comparative Corporate Governance (January 25, 2021). Fordham Law Legal Studies Research Paper No 3772965, forthcoming Journal of Corporation Law (2021).

Andrew Gold, The Right of Redress: Book Launch and Panel Discussion, Zoom, 18 February 2021 4:00 PM EST

The law enables private parties to undo the wrongs committed against them, allowing them to seek redress. Moreover, a distinctive kind of justice governs our legal rights of redress, different from the leading corrective justice approaches. Through analysis of these key ideas, The Right of Redress (Oxford University Press, 2020) helps to make sense of tort, contract, fiduciary law, and unjust enrichment doctrine. The Right of Redress offers a pathbreaking account of the justice in private law, the political theory that underlies it, and the contemporary features that shape the field today … (more)

Cheong and Kishen, ‘Legal Risks Beneath Blockchain-enabled Smart Contracts’

Blockchain technology and its various applications have been gaining momentum rapidly in recent years. With the ability to disrupt whole industries and multi-national corporations, regulators have become aware of its potential as much as being wary of its inherent risks. This article seeks to shed light on the intricacies of blockchain, its opportunities and threats, the current legal regime in Singapore, and its effectiveness in mitigating inherent legal risks.

Cheong, Ben Chester and Kishen, Harry, Legal Risks Beneath Blockchain-enabled Smart Contracts (January 24, 2021). The Law Gazette, January 2021,

Jason Rantanen, ‘The Future of Empirical Legal Studies: Observations on Holte and Sichelman’s Cycles of Obviousness’

Over the last five years, the Iowa Law Review has published dozens of empirical legal studies. These studies have been a valuable contribution to the literature, adding data to help assess the validity of legal theories and hypotheses. Intellectual property law, in particular, has been an especially active growth area for empirical legal studies, and the Iowa Law Review has been at the cutting edge of empirical studies of intellectual property law.

Yet empirical legal studies generally have been subjected to widespread criticism. While some current norms in the field reflect progress over the last twenty years, others embody practices with room for improvement.

This Essay argues that a critical way to increase the credibility – and thus the value – of empirical legal studies is to focus first on the seemingly mundane issues of sound data acquisition descriptions, data reliability assessment, and data transparency. In service of this goal, this Essay identifies some of the excellent methodological practices of Ryan Holte and Ted Sichelman’s recent Iowa Law Review article ‘Cycles of Obviousness’ as well as some of the areas in which it reflects norms within the field that could be improved. This Essay concludes with a few practical, easy-to-implement recommendations for both the authors of and journals that publish empirical legal studies.

Rantanen, Jason, The Future of Empirical Legal Studies: Observations on Holte and Sichelman’s Cycles of Obviousness (December 28, 2020). 105 Iowa Law Review Online 15.

Hannah Patton, ‘From Blurred Lines to Blurred Law: An Assessment of the Possible Implications of Williams v Gaye in Copyright Law’

In December 2018, panic spread throughout the music industry in light of headlines reporting that the Ninth Circuit Court of Appeals upheld the lower court’s verdict that the 2013 hit song ‘Blurred Lines’ by Robin Thicke and Pharrell Williams infringed Marvin Gaye’s ‘Got to Give it Up’, released in 1977. In addition to the tremendous $5.3 million award ordered for the Gaye estate, the Blurred Lines Case resulted in fear that the holding could create precedent for allowing the ‘style’ or ‘groove’ of a song to be considered subject to copyright. Since then, industry insiders, lawyers, and commentators have feared that the decision set precedent for a radical expansion of copyright protection, and thus, a chilling effect on creativity among songwriters. The largely unaddressed question, however, is what does this decision mean for other areas of copyright law? Through a thorough evaluation of the current landscape of copyright law, this note analyzes the possibility of this apparent trend spreading into other areas of copyright, specifically film and motion pictures. Given findings that this trend appears to be contained to the music industry, this note asserts that a disparity of treatment of protected works exists under copyright, and introduces an inquiry as to whether this disparity should exist.

Hannah Patton, From Blurred Lines to Blurred Law: An Assessment of the Possible Implications of Williams v Gaye in Copyright Law, 28 Journal of Intellectual Property Law 251 (2021).

‘Liberal Property Law vs Capitalism’

“Hanoch Dagan has written a wonderful, thoughtful, and thought-provoking book. Its publication could have hardly come at a more prescient time. Many observers and commentators rightly despair over the lack of opportunities the current economic and legal regime offers to the many while it privileges the few. Calls for socialism are growing louder as there seems to be no alternative given the realities of the neoliberal order. Against this background, Hanoch develops a theory of private property that is truly liberal in the original meaning of the term: a theory built on the principle of individual autonomy, or ‘self-authorship’, but also on structural pluralism and relational justice …” (more)

[Katharina Pistor, LPE Project, 27 January]