Search

Market definition is an important aspect of antitrust analysis, but the exercise requires designating each potentially relevant good as either completely in or out of the market. In a market with differentiated goods, this often necessitates making unsatisfactory designations. This article introduces the concept of the antitrust market as a fuzzy set, where each relevant good can have a degree of membership in the market, rather than only the traditional binary in or out designation. A product's degree of membership in the market is assigned based on its closeness of substitutability to the focal products. We then show how implied market shares can be calculated from a defined fuzzy antitrust market. We illustrate an implementation of these concepts using data from the grocery retail market and demand estimations from prior literature. We also discuss how this concept serves as a middle way between supporters and detractors of market definition, as implied market shares are objects that not only reflect demand substitutability but also allow for the rhetorical benefits of having delineated a market to focus discussion and analysis of competitive issues. [ABSTRACT FROM AUTHOR]

Third parties who receive trust property with knowledge that the transfer to them was a breach of trust will be liable in knowing receipt. Knowing receipt has grown quickly in importance in recent years and many of the finer points of the doctrine are still being worked out. This paper discusses one such issue: whether liability can exist when the third party acquires a security interest in trust property, rather than the underlying trust property itself. This point has not yet been considered by English courts, although it has been examined in cases from Australia, Canada and Hong Kong. The paper analyses the existing authorities in the context of the wider law relating to knowing receipt and explains the conceptual difficulties and practical problems with allowing liability to be grounded on the receipt of a mere security interest in trust property. [ABSTRACT FROM AUTHOR]

Copyright of Lex Humana is the property of Lex Humana and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Students need support when working on complex tasks such as writing. Reward-learning theories posit that verbal rewards, like feedback-depending on its design-can support students' extrinsic and intrinsic motivation. So far, empirical studies have focused on using praise feedback to foster extrinsic motivation. However, researchers have argued that fostering intrinsic compared to extrinsic motivation has more sustainable effects and that constructive feedback can also function as an intrinsic reward by supporting students' knowledge acquisition. We investigated whether constructive feedback that students perceive as useful can sustain triggered situational interest and support writing performance by being a rewarding experience, indicated by a positive emotional response to receiving feedback. We asked 1709 secondary students to write and revise a text after receiving constructive feedback designed to foster knowledge acquisition. To test whether the feedback worked as a reward (i.e., elicited a positive emotional reaction), we estimated a causal mediation model with perceived feedback usefulness as the predictor, latent profiles of students' emotional responses as the mediator, and students' interest and revision performance change as the outcome. Students who perceived the feedback as useful showed a more positive interest change. As indicated by the indirect effects, the relation can be partially explained by students' emotional reactions, especially when students perceived the feedback as highly useful. No relations were found for writing performance. Our results suggest that constructive feedback that students perceive as highly useful for their knowledge acquisition can function as a constructive reward. • Students received constructive feedback on their writing and used it for revision. • Latent profile analyses of emotional reactions to feedback. • Profiles mediate the relation between feedback perception and interest in revising. • Constructive feedback can function as a reward when perceived as highly useful. • Adds new perspective to the discussion of verbal rewards in education beyond praise. [ABSTRACT FROM AUTHOR]

In Hong Kong law, the courts have always declined to introduce the remedial constructive trust device, characterising it as a moot point or as a device that does not exist in Hong Kong. However, the most recent Court of Final Appeal (CFA) decision in Cheung Lai Mui v Cheung Wai Shing [2021] HKCFA l 9 deviated hom the foregoing attitude to Temedial constructive trusts. It recognised "unconscionability" as the basis of relief, demonstrating the departure of Hong Kong law from the principles of proprietary estoppel currently applied in the English law. Contrary to the English approach of minimum equity to do justice, the exercise of broad discretion by the CFA in Cheung Lai Mui was more similar to the Australian approach to proprietaTy estoppel remedies. This case note analyses the reasons why the CFA adopted the remedial constructive trust approach in Cheung Lai Mui, as well as the problems that arise Fom the adoption of such an approach in Hong Kong law. [ABSTRACT FROM AUTHOR]

It is both surprising and troubling that Australia's choice of law rules for resulting and constructive trusts are fundamentally unsettled. A key reason for this unsatisfactory state of affairs is that the choice of law discussion has not proceeded on the basis of a holistic understanding of domestic law. Rejecting the suggestion that the lex fori ought always to apply to equitable claims, this article takes the view that the development of choice of law rules is closely informed by a proper understanding of domestic law. It proposes a structured understanding of domestic law by drawing on the different ways in which resulting and constructive trusts are informed by the plaintiff's and defendant's pre-trial rights and duties. The article then demonstrates how this understanding can lead to a systematic development of the choice of law rules that apply to resulting and constructive trusts. [ABSTRACT FROM AUTHOR]

The development of legal principles which arise from judicial decisions, forming the common law, are often criticised for their apparent rigidity. Equity has thus traditionally filled the role of counteracting this nature, flexibly reactive to the circumstances of those coming before the law. However, expectations that equity is simply counterbalancing the often unfair rigours of strict law obscures today’s reality that it is more than just flexible. Indeed, equity can be just as rigid in its application as the common law, being necessarily both prescriptive and vague in parts to mitigate otherwise unfair outcomes. This proposition suggests that the common law and equity are achieving unexpected forms of alignment, which may eventually prompt them to become indistinguishable without necessitating their fusion. Indeed, observing the gradual development within the judicial application of equity and its alignment with flexibility yields a limited perspective to analyse how equity achieves justice. Instead, equitable remedies, generally regarded as being the purest form of equity in action, can be studied to identify how equity at its most flexible encapsulates aspects of rigidity. Such a duality between seemingly counterposing variables demonstrates an increase in overall effectiveness. Further, drawing a comparison with common intention constructive trusts identifies that this phenomenon is not limited to equitable remedies alone. The significance of this analysis is twofold: first, it broadens the prevailing perspective of debate, which adheres to a binary view juxtaposing certainty versus flexibility; and second, it suggests that the relationship between equity and the more rigid common law is one of co-dependence, rather than the two systems being either fused or independent. Indeed, equity and the common law cannot exist without each other, as both interact to varying extents in the pursuit of justice. Crucially, this insight presents new benchmarks for the mechanisms of justice, requiring that just outcomes may not be achieved without maximising both reliability and fairness.

The ‘joint endeavour constructive trust’ doctrine, propounded for the first time by the High Court in Muschinski v Dodds, is firmly part of modern Australian law. Yet, its precise requirements and remedial approach are poorly understood and inconsistently applied. The primary contributing factor is the prevailing understanding that unconscionability must be established for the doctrine to apply, and that the remedial approach aims to avoid unconscionability. But unconscionability has not been precisely explained, which has led to the erroneous view that the joint endeavour constructive trust doctrine is discretion-based instead of rule-based. This article argues, first, that unconscionability, either per se or as implying the need for wrongdoing, is not a prerequisite for the application of the doctrine, and that the doctrine is triggered by ascertainable and predetermined real world events. Second, this article argues that the remedial aim of avoiding unconscionability finds expression in a structured remedial approach: courts do not exercise open-ended remedial discretion. This deconstruction allows us to appreciate that the rationale of the doctrine lies in its autonomy-enhancing function, and also allows us to resolve prevailing uncertainties concerning the interplay between the joint endeavour constructive trust doctrine and the common intention constructive trust doctrine. [ABSTRACT FROM AUTHOR]

The aim of this article is to review and critically analyse the English law relating to common intention constructive trusts in the context of the family home. In particular, it seeks to show how the English courts have addressed the question of establishing and quantifying the parties' beneficial shares in both sole and joint ownership cases. The writers also seek to compare the English approach with the way in which such questions have been answered by the Australian courts. The primary purpose of this comparison is to consider what lessons (if any) can be learnt from the Australian model. [ABSTRACT FROM AUTHOR]

When Ponzi schemes collapse and enter into bankruptcy liquidation, bankruptcy trustees assume that conveyances made by the debtor for no consideration are fraudulent conveyances. This Article argues that they are not. Virtually all the assets held by a Ponzi scheme are held in constructive trust for the victims of the fraud. If victims of the fraud can trace the proceeds of their investments into property transferred to a third party, the third party holds the asset transferred in trust for the relevant victim. When a bankruptcy trustee characterizes the asset as a fraudulently conveyed asset, the trustee expropriates the asset from the victim on behalf of the unsecured creditors of the Ponzi scheme. There are only two justifications for this expropriation. First, tracing is impossible or too costly. This claim reduces to the theory that a thief should not restore the loot to the victim when it is costly to do so. Second, when the third party points out that the victims (not the bankruptcy trustee) own the cause of action for restoration of the loot, the third party is making an impermissible ius tertii defense. Being estopped from this defense, the third party must surrender the transferred asset to the bankruptcy trustee. This essentially completes the expropriation of victim property for the benefit of the unsecured creditors, who are scarcely entitled to enjoy this stolen property. [ABSTRACT FROM AUTHOR]

Copyright works are frequently created in breach of one or more laws. These works vary in degrees of wrongfulness and the laws and interests that are impacted by them. The works may contain illegal content, such as child pornography. Laws may also be contravened in the process of creating copyright material, such as a graffiti artist committing trespass. Courts' remedial responses to these 'illegal works' generate important social and policy issues. Granting owners of copyright in illegal works the full panoply of remedies might incentivize or normalise illegal behaviour and effectively reward wrongdoing. And yet, moderating remedies may appoint judges as moral guardians. Focusing on Anglo-Australian law, this article examines whether the unlawfulness infecting illegal works can and should be considered by courts in exercising their remedial discretion in two main contexts. First, it investigates when and why courts have refused to enforce copyright on public policy grounds, and attempts to distil relevant principles from diverse decisions. Second, the article considers the relevance of illegality when courts exercise their equitable jurisdiction, focusing on the remedy of a constructive trust which grants the benefit of copyright to the victim of the author's wrongdoing. The article argues that, in narrow circumstances, courts should have the flexibility to offset the illegality on public policy grounds and by imposing a remedial constructive trust. [ABSTRACT FROM AUTHOR]

Recent analyses of proprietary remedies have overwhelmingly focused on the constructive trust. This article investigates a less prominent proprietary remedy: the equitable lien. Though the lien is not as intrusive a remedy as the trust, because it insulates a creditor from the consequences of his/her debtor's insolvency, it raises many of the same questions. If a lien is to be justified, there must be some compelling reason for preferring the claims of some general creditors at the expense of others. This article argues that it is very difficult to demonstrate why some creditors are more deserving than others. Excepting a small number of anomalous instances in which the lien can be justified on instrumental grounds, the effect of the equitable lien is to discriminate between creditors whose claims are, in all material respects, indistinguishable. [ABSTRACT FROM AUTHOR]

After decades of domination by social exchange theory and its focus on a manager-centered perspective, fairness scholars have recently issued numerous calls to shift attention toward understanding employees' subjective "lived-through" experiences and in situ responses to unfair events. Using appraisal theories, we argue that focusing on the employee's perspective highlights the importance of emotions in fairness experiences. Further, this emphasis creates opportunities for novel insights regarding the emotions that are likely to be relevant, the constructive responses that can emerge from unfairness, and the interplay between unfair events and entity fairness judgments. Using a daily diary study with event sampling, we highlight the importance of anger and anxiety in understanding how individuals experience and react to unfair events. Results indicated that anger elicited counterproductive work behaviors, whereas anxiety initiated problem prevention behaviors (i.e., a subdimension of proactive work behavior). Further, by engaging in problem prevention behaviors, employees can positively influence their subsequent overall fairness judgments. Experiences of an unfair event can also be shaped by individuals' preexisting overall fairness judgments, such that preexisting overall fairness judgments are negatively associated with anger but positively associated with anxiety. Implications for theory and practice are discussed, including the influential role of emotions for fairness experiences, how employees' own behaviors can influence subsequent overall fairness judgments, the interplay between unfair events and entity judgments, and ensuring that fairness is effectively managed on a daily basis. [ABSTRACT FROM AUTHOR]

The decision in Marr v Collie represents a significant expansion of the common intention constructive trust doctrine. Unsupported by authority, it relaxes the requirement that the property be acquired for a 'domestic' purpose, and widens the doctrine to encompass all property, whether real or personal. The decision's abrogation of the 'purpose' restriction redraws the line between the common intention constructive trust doctrine and the presumed resulting trust doctrine and expands the former to the greatest possible extent. This exacerbates a doctrine already apt to adversely affect both individual litigants and the justice system as a whole, and which creates incongruous theoretical divisions within the law of intentionally created trusts. As the doctrine is reliant on the proposition, unsupported by authority or legislation, that conveyance of a title to land into joint names necessarily gives rise to a trust, it is hoped that a future apex court will reconsider the doctrine's proper scope. [ABSTRACT FROM AUTHOR]