Steve Hedley

A brief history of spam

Abstract The behaviour both of spammers and those who have sought to counter their activities has gone through a rapid evolution as each has responded to the other. This steady escalation of spamming technique and of legal and technical counter-measures is described. The need to distinguish between legitimate businesses that wish to know the limits of permissible spam advertising and straightforwardly criminal spammers is now paramount. The first group are relatively easy to control, and indeed many of the necessary laws are already in place. The second is much more difficult and may prove impossible to control without radical changes to the very architecture of the Internet.

IMPLIED CONTRACT AND RESTITUTION

Most modern writers in restitution assume that that the theory of “implied contract” has somehow been disproved or discredited. Yet the justification for this is weak, and begs important questions about the nature and methodology of “genuine” contract law. This article argues for the continued usefulness of “implied contract”, and applies it as the basis of significant portions of the modern law of restitution.

Nations, markets and other imaginary places: who makes the law in cyberspace?

Whose laws apply to cyberspace? This article attempts to identify which constellations of forces are most successful in imposing their laws on cyberspace, and the prospects for the future. From the first, we have talked of cyberspace as a ‘place’ or as ‘recently-discovered territory’, and have asked who governs this territory. Some say that it is outside any other nation, and perhaps should remain so; others reply that this is ‘cyberanarchy’, and that each nation should claim its own share of cyberspace. Yet such talk merely reduces one metaphor to another, for nations too are only ‘spaces’ in a metaphorical sense. Borders are not marked on the ground, and they are only marked on maps because that is how we have chosen to draw them. In attempting to enforce their national laws in cyberspace, the permeability of the borders results in a steady pressure towards international conformity: nations cannot in practice enforce their laws unless they frame them similarly to those of their neighbours. Hence the ‘paradox of nationalism’: individual nations can only assert their individual national identity in cyberspace if that identity is pretty much the same as that of other nations.

Unjust Enrichment: A Middle Course?

The torrent of scholarly writings on restitution continues. Confining our attention simply to writings since 2000, we have seen five new books of theory,1 four new (or new editions of old) general texts,2 three specialized texts,3 three books of essays,4 and a steady stream of articles and notes. And there is much more on the way, including perhaps even a new Restatement.5 Yet this is no chorus of harmonious voices. It is more like a family squabble, and certainly it is almost unfathomable to outsiders. A bird’s-eye view of current controversies is sorely needed, and in this article I set out to provide it.

What is ‘unjust enrichment’ for?

By many accounts, unjust enrichment is well-developed as an aspect of private law, distinct from property, contract and tort. But the reasons justifying it are not. The modern scholarship gives elaborate accounts describing the law, but has nothing substantial to offer as to why the law is there—or, indeed, whether it should be there at all. Charlie Webb’s Reason and Restitution: A Theory of Unjust Enrichment, recently published by Oxford University Press, now seeks to fill this gap. His conclusion is a striking one: while it is right that we have such a law, the reasons for it have nothing to do with unjust enrichment, and rather a lot to do with property, contract and wrongs. The idea that there is a distinct set of reasons, additional to those motivating the rest of private law, turns out to be an illusion.