Ryan Hanley, ‘Human Flourishing and the Wealth of Nations: Adam Smith on Character Development and Institutional Design’

2 August 2026 | Author: steve

ABSTRACT
Students of Adam Smith’s views on virtue typically look to The Theory of Moral Sentiments. But in fact, the Wealth of Nations contains a strikingly robust theory of the relationship between virtues and institutions, one centered on the question of how the incentive systems created by various institutional structures encourage or impede the moral development of both individuals and societies. This essay documents this underappreciated approach and aims to demonstrate its ubiquity in the Wealth of Nations across multiple institutional contexts.

Ryan Patrick Hanley, Human Flourishing and the Wealth of Nations: Adam Smith on Character Development and Institutional Design, Social Philosophy and Policy, volume 43, special issue 1: Human Capital and Human Flourishing, pp 78-98 (Summer 2026). Published online by Cambridge University Press: 31 July 2026.

Posted in Deontology and Moral Responsibility, Law and Economics, Legal History | Leave a Comment

Jordan Blanke, ‘Copyright and AI: The Building Blocks’

2 August 2026 | Author: steve

ABSTRACT
The rapid development of artificial intelligence has revived many of the oldest and most enduring questions in copyright law. Courts now confront whether AI systems infringe by training on copyrighted works, whether AI-generated output may infringe existing copyrights, whether AI-generated output can qualify for protection, and how traditional doctrines-such as originality, fair use, and authorship-apply when human creativity is mediated by machines. This Article argues that these disputes are best understood through the foundational ‘building blocks’ of copyright law. Longstanding precedents – from Baker v Selden and Feist Publications v Rural Telephone to Campbell v Acuff-Rose and Warhol v Goldsmith – already provide analytical tools necessary to address today’s challenges. By tracing the evolution of core concepts such as idea and expression, facts and originality, human authorship, substantial similarity, and transformative use, this Article demonstrates that the law of copyright has always evolved around and beside technology, and will continue to do so, likely shaping new building blocks for the future. Far from demanding an overhaul of doctrine, artificial intelligence invites a renewed appreciation for copyright’s resilience and its continuing capacity to balance incentive, creativity, and public access, and to ‘promote the progress of science and the useful arts’ in the digital age.

Blanke, Jordan M, Copyright and AI: The Building Blocks (July 28, 2026), American Business Law Journal (forthcoming).

Posted in Intellectual Property | Leave a Comment

Choi, Gulati and Ball, ‘The Sound of Silence’

2 August 2026 | Author: steve

ABSTRACT
Standard contract theory assumes that sophisticated drafters read formal judicial opinions and revise agreements accordingly. This Essay challenges that model by demonstrating how informal judicial signaling shapes contract production and the reliance on default rules through contractual silence. Using mergers and acquisitions (M&A) sandbagging provisions as a case study, we examine why contractual silence surged to 72% following the Delaware Supreme Court’s 2018 Eagle Force decision – which cast doubt on Delaware’s sandbagging default – despite eminent commentators universally urging counsel to draft express clauses in response to the uncertainty. Analyzing 3,642 public agreements from 2010 to 2025 alongside practitioner interviews, we introduce the ‘Delaware signal’ hypothesis. When formal opinions create market ambiguity, Delaware judges utilize informal channels like bar conferences and committee meetings to reassure elite attorneys. Rather than increased uncertainty that one would expect from the Eagle Force decision, the informal efforts of the Delaware judges led to a more certain, strengthened sandbagging default. Because active bargaining generates significant transaction costs and client friction, this robust default diminished the benefit of express drafting, leading drafters to opt for contractual silence.

Choi, Stephen J and Gulati, Mitu and Ball, Molly, The Sound of Silence (July 24, 2026), Virginia Public Law and Legal Theory Research Paper No 2026-47; Virginia Law and Economics Research Paper No 2026-15.

Posted in Contract, Interpretation | Leave a Comment

Lukas Rass-Masson, ‘The Impact of European Private International Law and the réserve héréditaire in France’

2 August 2026 | Author: steve

ABSTRACT
Whether the réserve héréditaire (forced heirship under French inheritance law) forms part of French international ordre public, and therefore falls within the public-policy exception, has long been the subject of a major doctrinal debate in France. While the traditional answer was positive, the contemporary evolution of French private international law, driven in particular by the EU Succession Regulation (No 650/2012) and by recent case law and legislation, has unsettled that position. This chapter examines how European private international law reshapes the place of forced heirship in cross-border succession cases in France, analysing the tension between freedom of choice of the applicable law and the mandatory protection of heirs, and assessing what the European framework implies for the future of the réserve héréditaire.

Rass-Masson, Lukas, The Impact of European Private International Law and the réserve héréditaire in France (October 31, 2021) in JM Scherpe, E Bargelli (eds), The Interaction between Family Law, Succession Law and Private International Law: Adapting to Change, Intersentia, 2021, p 195.

Posted in Conflict of Laws, European Private Law, Public policy, Succession | Leave a Comment

Chunyan Ding, ‘Chinese Tort Law in the Era of the Civil Code’

1 August 2026 | Author: steve

ABSTRACT
Promulgated in 2020 and effective from January 1, 2021, China’s Civil Code replaces the 2009 Tort Liability Law through its Book VII, maintaining much of the prior structure but introducing three significant revisions: a redefined scope of tort liability, an expanded application of punitive damages, and new rules governing cybertorts. The Code primarily limits tort liability to damage compensation and emergency preventive remedies, moving other remedies such as property restitution and reputation restoration to general civil liability provisions. This reclassification has faced criticism for its logical inconsistencies and challenges for unrepresented litigants. Punitive damages are now available for intentional intellectual property violations and severe environmental damage, thereby enhancing private civil litigation’s role in reinforcing public oversight and increasing deterrence. Furthermore, it establishes a three-stage notice-and-counter-notice procedure for internet service providers (ISPs), imposing dual primary and fault-based secondary liability on platforms, while leaving unresolved ambiguities regarding their verification obligations. The Civil Code also showcases a distinct tort law framework consisting of a comprehensive compensation system for pecuniary, non-pecuniary, and punitive damages, a multi-layered imputation system incorporating various liability types, and a multi-tier liability framework. With significant vagueness in statutory language and unresolved doctrinal questions, the future development of Chinese tort law will depend largely on the Supreme People’s Court’s binding judicial interpretations and evolving soft case law to clarify uncertainties and adapt to emerging technological challenges.

Ding, Chunyan, Chinese Tort Law in the Era of the Civil Code (May 31, 2023).

Posted in Tort | Leave a Comment

Sophia Moreau, ‘Objectionable Obligations’

1 August 2026 | Author: steve

ABSTRACT
Many of our moral obligations result partly from wrongs or injustices, whether individual acts of wrongdoing or broader institutional or structural injustices. This article argues that in some of these cases, the agent is left ‘caged in’ by their own moral obligation, in the sense that they are morally compromised whether they fulfil it or do not fulfil it. Since these are all-things-considered obligations, if an agent does not not fulfill their obligation, they act wrongly; and, if the obligation is a directed one, they wrong those to whom it is owed. But because of the relationship between the obligation and the wrong or injustice that generated it, fulfilling an objectionable obligation may perpetuate or even exacerbate that injustice; it may, more strongly, turn the agent into the instrument through which the original wrongdoer accomplishes his wrongdoing; or the obligation may require one to do something to the very people whom one is supposed to be caring for that severely harms them, something that in some way echoes the original injustice. The author calls these ‘objectionable obligations’. While the idea of an obligation that is itself morally objectionable can sound paradoxical, the article argues that it is quite coherent and provides us with an important normative resource, helping us to make progress in certain debates in normative ethics and political philosophy.

Moreau, Sophia, Objectionable Obligations (July 21, 2026), New York University School of Law, Public Law Research Paper Forthcoming; The Philosophical Review 135.2, April 2026.

Posted in Deontology and Moral Responsibility | Leave a Comment

Fong Jun Yi, ‘On Causation and Accounts of Profits: Rukhadze v Recovery Partners GP Ltd’

1 August 2026 | Author: steve

ABSTRACT
In the recent case of Rukhadze v Recovery Partners GP Ltd, the UK Supreme Court was given the opportunity to reconsider the House of Lords’ previous formulations of the account of profits doctrine in Regal (Hastings) Ltd v Gulliver and Boardman v Phipps. It was concluded that the position in Regal and Boardman regarding the necessary link between the fiduciary position and the profits to be accounted for should be retained. However, the four judgments issued by the Supreme Court not only revealed very different bases for this holding, but also revealed several differences in interpretation of Regal and Boardman. This note summarises the four judgments, comments on the Court’s views on the character of the account of profits doctrine, and suggests ways in which future cases may further refine the doctrine.

Fong Jun Yi, On Causation and Accounts of Profits: Rukhadze v Recovery Partners GP Ltd, Modern Law Review. First published: 30 July 2026.

Posted in Causation, Equity and Trusts | Leave a Comment

Felipe Jiménez, ‘Beware Judge & Co’

1 August 2026 | Author: steve

ABSTRACT
Richard Hyland’s ‘Common Law Judging and the Great Tradition’ offers an admirably erudite reconstruction of the common law’s central commitments. Hyland is right that the common law is not a system of rules mechanically applied and that good adjudication ultimately requires good judges. But accepting that judges have broad, ineliminable discretion is different from concluding – as Hyland tends to – that there is no vantage point from which judicial decisions can be evaluated and criticized. This essay argues that Hyland’s account of the common law is in tension with the rule of law; that the common law cannot rely as easily as he suggests on the claim that it tracks social norms and values; and that we should be concerned about an excessive and uncritical admiration of individual judges in the American common law. Still, Hyland is right that the openness and adaptability of the common law are both central to it and valuable. But this should not lead us to a quietism that avoids rational scrutiny of how judges exercise their power.

Jiménez, Felipe, Beware Judge & Co (July 29, 2026). Forthcoming, New England Law Review.

Posted in General | Leave a Comment

Martin Edwards, ‘Equity, Private Ordering, and Corporate Law’

1 August 2026 | Author: steve

ABSTRACT
Equity, private ordering, and law are the cornerstones of corporate governance. Courts and scholars regularly hold forth on the interaction between them, drawing the lines separating them ever more finely. According to most scholars and judges, fundamental tensions beset these interactions. Among them: Contractarian theory cannot account for mandatory rules of corporate law. Private ordering must yield when it conflicts with judicial authority to make sound public policy. Equitable features of corporate doctrine are in tension with private ordering. Because of this, corporate governance is left to muddle along with no complete theory, forever locked in a battle where law, equity, and private ordering conflict.

The result in Delaware has been the development of a corporate law that is, frustratingly, both inconsistent and rigid. In turn, recent cases spurred a flurry of blunt legislative changes as a rearguard effort to fix it. All this for a corporate law canon where the selling points are supposed to be stability, clarity, and expertise.

This Article proposes a new theory to help resolve the tension: The Corporate Bargain Model. The Corporate Bargain Model reveals that, contrary to the oft-recited tension between them, mandatory corporate law, equitable doctrines, and private ordering are in fact harmonious. Indeed, every corporation, of every shape and size, consists of a unique corporate bargain, which contains all aspects of the parties’ relationships over time. Sound equitable reasoning facilitates private ordering, specifically and importantly, of the tacit or relational kind, by inquiring carefully into the entire terms of that corporate bargain – not just expressly chosen terms, default rules of law, or even curated principles of equity.

Edwards, Martin, Equity, Private Ordering, and Corporate Law (July 14, 2026).

Posted in Business Organisation, Equity and Trusts, Law and Economics | Leave a Comment

John Lovett, ‘Good Faith in Louisiana Property Law’

1 August 2026 | Author: steve

ABSTRACT
The concept of good faith is a cornerstone of Louisiana private law. It plays a central role in the law of general and conventional obligations. It makes crucial appearances in the law of sales. It even affects subjects in the law of persons, such as the civil effects of absolutely null and putative marriages. But good faith is also a pivotal concept in Louisiana property law. Although it has always been a feature of that law, during an intense burst of law reform activity stretching from 1977 to 1982, the Louisiana Legislature (‘Legislature’) updated and extended the concept of good faith in several core areas of property law. This Article addresses the role of good faith in four of those distinct areas: (1) as a prerequisite to the establishment of a predial servitude benefiting the owner of a building that encroaches on the property of a neighbor; (2) as a mediating device allocating the rights of an original owner of a corporeal movable and a subsequent acquirer under the bona fide purchaser doctrine; (3) as a defining characteristic establishing rights and obligations under the law of accession when a person possesses immovable property without a valid title; and (4) as a prerequisite for the acquisition of ownership of, or other real rights in, immovable property by ten-year acquisitive prescription. Although this Article notes the sources of good faith in Louisiana jurisprudence, prior Louisiana civil codes, and European civil codes considered in the revision process, it focuses primarily on how good faith has functioned in the post-revision property law landscape. It does so by examining the text and structure of the good faith provisions in the continuous revised Civil Code and reported judicial decisions that have employed the new or reformulated definitions of good faith.

Lovett, John A, Good Faith in Louisiana Property Law (May 30, 2018).

Posted in Property | Leave a Comment