Conference theme: Wealth Without Borders: Trusts, Philanthropy and Responsibility in an Age of Polycrisis. As the world navigates an era of overlapping crises, whether economic, environmental, geopolitical or social, the law of trusts, wealth management and philanthropy faces mounting pressure to reconcile the free movement of wealth with growing demands for responsibility, accountability and impact … (more)
Tarunabh Khaitan, ‘Authorial and Authorised Purposiveness: Natural Persons, Organised Agents, and the Public-Private Debate’
12 September 2026 | Author: steve
ABSTRACT
Liberal law rests on a familiar contrast: private persons may do whatever law does not forbid, whereas public bodies must justify action as authorised by positive law. Through legal ‘personhood’, this agentive public-private divide extends a presumption of autonomy-and the fundamental rights expressing it-to most non-state legal persons, including companies, charities, trade unions, political parties, churches, and universities. This paper argues that the line is misplaced: it should run not between private persons and public bodies, but between natural persons and organised agents. Natural persons presumptively bear autonomy-rights because they are capable of authorial purposiveness: the first-personal, experiential, conscious, diachronic, and revisable authorship of a life from within. Organised agents instead have authorised purposiveness: in ideal cases, externally ascertainable purposes, settled procedures, and official voices. Their power-pooling and power-amplifying capacity makes accountability, not autonomy, the fitting presumption. Their rights require derivative justification through the natural persons whose interests they mediate, or functional justification as constitutive of a licit institutional purpose. Accountability, moreover, is differentiated: state organised agents call for ‘domestication’ through separation of powers, and many non-state agents for regulatory ‘taming’.
Khaitan, Tarunabh, Authorial and Authorised Purposiveness: Natural Persons, Organised Agents, and the Public-Private Debate (September 10, 2026). Forthcoming in Oxford Studies in Philosophy of Law (Brian Leiter ed, vol 7, 2026); LSE Legal Studies Working Paper No 11/2026.
Steph Bailey, ‘Coercion and constructive trusts: a blind spot in equity’
12 September 2026 | Author: steve
ABSTRACT
The constructive trust framework governing cohabitation property disputes in England and Wales is structurally ill-equipped to address domestic abuse. Its reliance on inferred intention and financial contribution means that coercive and economic abuse can undermine the evidential foundations of beneficial ownership. Drawing on statutory developments and comparative insights from Australia, this article contends that the current approach in England and Wales risks entrenching inequality. It concludes that a reconceptualisation of beneficial interests is necessary if the law is to respond coherently to the realities of relationships characterised by coercion and control.
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Steph Bailey, Coercion and constructive trusts: a blind spot in equity, Trusts & Trustees. Published: 7 September 2026.
Hewitt and Carr, ‘Administrative unworkability revisited: Jennings v Appleby [2026] EWHC 1161 (Ch)’
12 September 2026 | Author: steve
ABSTRACT
The administrative unworkability of a trust is a concept that is more often considered by undergraduate law students than by the courts. Although its existence is well known, the confines of the doctrine and the consequences of its application are not entirely clear. In Jennings v Appleby, the fact that the class of discretionary beneficiaries had potentially grown to more than one million gave the court a rare opportunity to revisit some of these issues.
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Edward Hewitt and Ashleigh Carr, Administrative unworkability revisited: Jennings v Appleby [2026] EWHC 1161 (Ch), Trusts & Trustees. Published: 8 September 2026.
Minju Kang, ‘A Social Law Approach to Business and Human Rights’
12 September 2026 | Author: steve
ABSTRACT
This thesis proposes a social law approach to examine and suggest future directions for the legal and institutional responses to the Business and Human Rights (BHR) framework. The social law approach referred to in this thesis seeks to interpret and apply social law’s inherent ethos and methodologies to the current global value chain economy and relevant BHR measures, rather than focusing on specific areas of social law, such as particular labor or social security policies. Principles of solidarity and social justice, along with social law’s distinctive methodology of ‘public intervention in private sphere,’ constitute essential elements of the discussion. This thesis explores both the strengths and limitations of the polycentric governance in contemporary legal ecosystem. Furthermore, it addresses the governance risks associated with the growing trend toward corporate-centered due diligence measures, which often rely heavily on voluntary regulation and self-monitoring. Building on this, the thesis explores the implications of social law’s historical significance and its normative approach, which actively addresses power imbalances between economic and social power relationships, for the current BHR framework. Through this analysis, it reconceptualizes ‘meaningful stakeholder engagement,’ a key requirement of polycentric governance, and further discusses ways to implement social law principles that foster democratic, redistributive, and inclusive justice within BHR framework, empowering the vulnerable frontline stakeholders.
Kang, Minju, A Social Law Approach to Business and Human Rights (January 28, 2025). PhD thesis, Seoul National University.
‘Realism or Formalism or Both?’
12 September 2026 | Author: steve
Andrew S Gold and Thilo Kuntz, ‘Bridges Between Realism and Formalism’, 70 American Journal of Jurisprudence 121 (2025). In their essay, ‘Bridges Between Realism and Formalism’, introducing a special symposium issue of the American Journal of Jurisprudence, Andrew Gold and Thilo Kuntz provide a clear and helpful survey of the impressive array of contributions, with a stimulating variety of perspectives on the relationship between Realism and Formalism. More than this, the authors produce an illuminating commentary on the ways these differing perspectives might be related and offer suggestions for possible directions for future research. The contributions to the symposium are considered in two sections of the essay … (more)
[Andrew Halpin, JOTWELL, 11 September 2026]
Mendelsohn and Hantel, ‘Commutative Justice as Fairness in the Digital Economy – A Private Law Interpretation of Fairness in EU Digital Acts’
12 September 2026 | Author: steve
ABSTRACT
A number of new European Union (EU) law acts dealing with the digital economy reference fairness as one of their main goals or benchmarks, which has sparked renewed interest in the normative meaning of fairness and the role it plays in the regulation of the digital market. This paper draws on a private law theory of justice, that of commutative justice, to propose a reading of the term fairness within these acts and their new legal instruments, which is grounded in the principles of private law exchanges. Because access to and fair exchanges on digital markets lie at the heart of these acts, we develop a normative reconstruction of specific provisions of the acts that is based on an analysis of commutative justice and that provides a conceptual framework for interpreting and sharpening their objectives and instruments. In doing so, this paper wants to shed light on this central aspect of fairness and its implications for the emerging EU framework governing digital markets.
Mendelsohn, Juliane and Hantel, Judith, Commutative Justice as Fairness in the Digital Economy – A Private Law Interpretation of Fairness in EU Digital Acts (July 31, 2026).
Bolderson and Kitchen, ‘Class action waivers: contracting out of class action litigation in England and Wales’
11 September 2026 | Author: steve
INTRODUCTION
This article considers whether businesses can lawfully deploy class action waivers (CAWs) to mitigate exposure to class action litigation involving breaches of competition law in England and Wales. It concludes that, in certain circumstances, they likely can, though the area is ripe for dispute and gives rise to a number of intellectually complex and engaging questions. Given the number of cases addressing this issue in other common law jurisdictions with lively class action regimes (such as Australia and Canada), it seems likely only to be a matter of time before the point falls properly to be tested in England …
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Ben Bolderson and Leo Kitchen, ‘Class action waivers: contracting out of class action litigation in England and Wales’ (2026) 142 Law Quarterly Review 664-688.
Wayne Courtney, ‘Liability in contract for mental distress’
11 September 2026 | Author: steve
INTRODUCTION
… The treatment of mental distress damages in contract evolved to its present state through a mix of judicial intuition and scepticism, without ever settling upon an organising theory. This article is concerned with the matter of liability – that is, defining the circumstances in which compensation can be awarded – and not the matter of quantification. My objective is to put liability for mental distress in contract on a more principled footing. Section II begins with some definitions. I discuss the present law in Section III. Various rationales have been offered to support the status quo or to argue for compensation to be expanded. I consider some of the more significant ones in Section IV. My argument then comes in Section V. I stop short of exhorting courts simply to use the basic principles of damages to resolve mental distress claims. Something more structured is required: an intermediating concept of interests. The law should award compensation for mental distress when certain protected interests are harmed by breach and not otherwise. The article maps English and Commonwealth case law against the model, to show that the model is viable and to identify interests that are already recognised, overtly or covertly. It also flags possible future developments. The conclusion appears in Section VI …
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Wayne Courtney, ‘Liability in contract for mental distress’ (2026) 142 Law Quarterly Review 640-663.
Steel and Williams, ‘Constructing the no breach counterfactual: the preclusionary rule’
11 September 2026 | Author: steve
INTRODUCTION
When compensation is claimed for breach of a private law duty, it is typically quantified by reference to a counterfactual in which the defendant did not commit the breach. The ‘preclusionary rule’, as we will call it, is relevant to the construction of this counterfactual. This rule sometimes prevents parties from populating the counterfactual with hypothetical breaches of duty. The clearly established core of the rule is as follows: a defendant is not able to argue that, but for the particular breach of duty which occurred, they would have committed some other breach of the same duty, even if this is what would have happened but for the breach. In addition, the preclusionary rule arguably prevents claimants from populating the counterfactual with breaches of duty owed by the claimant to the defendant in order to establish that they are worse off as a result of a breach. One might be tempted to suggest that all wrongdoing is excluded from the counterfactual, but this is clearly not the law. Whilst it is false to say that all wrongdoing is excluded from the counterfactual, the precise contours of the current rule are unclear. The purpose of this article is to identify the extant uncertainties in the preclusionary rule, explore possible ways of resolving those uncertainties in a normatively desirable manner, and then to restate the preclusionary rule as clearly as possible …
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Sandy Steel and Samuel Williams, ‘Constructing the no breach counterfactual: the preclusionary rule’ (2026) 142 Law Quarterly Review 599-617.