Francesco Delfini, ‘Instances of Civil Law in North American Common Law Tradition: Cause and Consideration in Quebec and Louisiana Civil Codes’

A practical comparison between the two main legal system families can profit from some unique instances of civil law that lie in the vast North American continent. Reference is made to Quebec, for Canada, and Louisiana, for the US. Both locales are part of federal states ruled mainly by common law. The Canadian and US legal systems embed civil codes that refer to and define a requirement for the validity of the contract, the cause, that European civil codes mentioned, but did not dare to define. The first Italian Civil Code, enacted in 1865, was consistent with the Napoleonic Code: the paragraph called ‘upon the cause of contracts’ contained section 1119 and section 1120, which read ‘An obligation without cause or with a false cause, or with an unlawful cause, may not have any effect’ and ‘A contract is valid, although its cause is not expressed’, following quite literally what section 1131 and section 1132 Code Napoleon stated. In the second and current generation of the Italian Civil Code, enacted in 1942, the rules changed in wording and now cause is referred to the contract (without any explanation of its meaning) and no more to the obligation. After 1942, therefore, scholars and Courts started to refer to the concept of cause, also (or exclusively) as the due control of the legal system on the lawfulness of the legal operation the parties to the contract are seeking, and on the practical results they wish to achieve. Following these paths, the meaning of the term cause also lost its certainty in the civil law systems themselves and often became a duplication of the concept of object (or subject matter): the concept of cause has lost its clarity to the extent that, given a proposal of European restatement or uniform codification, it is doubtful whether it would be worth maintaining the concept or not. In such a situation, the provisions in the Louisiana and Quebec Civil Codes that mention and even define the cause are of great interest also for the civil lawyer from different points of view.

Francesco Delfini, ‘Instances of Civil Law in North American Common Law Tradition: Cause and Consideration in Quebec and Louisiana Civil Codes’, 2 The Italian Law Journal No 1 (2016).

‘Of Firms and Fees’

Kathryn Judge, Intermediary Influence, 82 University of Chicago Law Review 573 (2015). Prominent economic theories rooted in the seminal work of Ronald Coase have long suggested that firms in a marketplace exist and work to reduce transaction costs, but the explanatory powers of these theories fail to reflect some of the realities of the modern marketplace. In many instances, particularly in the financial industry, it appears that firms exist and work to increase, rather than decrease, transaction costs. In her recent article, Intermediary Influence, Professor Kathryn Judge examines this peculiar phenomenon and offers a persuasive claim that helps to explain this persistent and consequential marketplace curiosity in finance … (more)

[Tom CW Lin, JOTWELL, 26 July]

Fox and Stein, ‘Dualism and Doctrine’

What kinds of harm among those that tortfeasors inflict are worthy of compensation? Which forms of self-incriminating evidence are privileged against government compulsion? What sorts of facts constitute a criminal defendant’s intent? Existing law pins the answer to all these questions on whether the injury, facts, or evidence at stake are ‘mental’ or ‘physical’. This key assumption that operations of the mind are meaningfully distinct from those of the body animates fundamental rules in our law.

A tort victim cannot recover for mental harm on its own because the law presumes that he is able to unfeel any suffering arising from his mind, by contrast to his bodily injuries over which he exercises no control. The Fifth Amendment forbids the government from forcing a suspect to reveal self-incriminating thoughts as a purportedly more egregious form of compulsion than is compelling no less incriminating evidence that comes from his body. Criminal law treats intentionality as a function of a defendant’s thoughts altogether separate from the bodily movements that they drive into action.

This essay critically examines the entrenchment of mind-body dualism in the Supreme Court doctrines of harm, compulsion, and intentionality. It uses novel insights from neuroscience, psychology, and psychiatry to expose dualism as empirically flawed and conceptually bankrupt. We demonstrate how the fiction of dualism distorts the law and why the most plausible reasons for dualism’s persistence cannot save it. We introduce an integrationist model of human action and experience that spells out the conditions under which to uproot dualism’s pernicious influence within our legal system.

Fox, Dov and Stein, Alex, Dualism and Doctrine (July 20, 2016). Philosophical Foundations of Law and Neuroscience 105-136 (Michael Pardo and Dennis Patterson ed, Oxford University Press, 2016).

Lyman Johnson, ‘Relating Fiduciary Duties to Corporate Personhood and Corporate Purpose’

The subjects of corporate personhood, corporate purpose, and fiduciary duties are all central to corporate law discourse. But what is the relationship of each of these to the others? This chapter describes how corporate personhood, corporate purpose, and fiduciary duties are vitally and coherently connected. While longstanding debates about the theoretical nature of corporateness likely will continue, corporations are meaningful socio-legal entities separate and distinct from those persons associated with them. With respect to corporate purpose, the objective or ‘mission’ of a business company is to provide goods or services in a particular manner, goals that may in part be non-monetary in nature and that are not necessarily the ultimate aims or motives of all individuals choosing to associate with a corporation. Moreover, corporate law generally is agnostic and broadly permissive as to a company’s goals, and shareholder well-being is better understood as an outcome of corporate success, not necessarily the very point of business enterprise. Taking these considerations together, corporations as distinct entities can and do have purposes separate and apart from those of its shareholders and other constituencies who choose, so to speak, to submit voluntarily to the jurisdiction of the corporation. This is an important characteristic of a burgeoning institutional pluralism not just in the business sector, but in modern society more generally, as different organizations pursue, to varying degrees, different entity-specific objectives.

Part 3 introduces fiduciary duties into this picture, arguing that corporate boards of directors collectively have the statutory governance responsibility, and corporate directors individually have the fiduciary duty, to act in the best interests of the corporate entity, which is to say, to act to advance the purposes of the corporation, whatever they might be. Thus, stated most strongly, the directorial fiduciary duty of loyalty is to act in the best interests of the corporation (a distinct person) by affirmatively advancing the articulated corporate purpose(s). But to fully explain the policy of strong judicial deference to director prerogative and discretion in charting corporate direction, and the empirical reality that remedial relief is rare even in the face of director failure to fulfill duty – that is, failure to devotedly advance corporate purpose – a weaker version of loyalty is judicially demanded, ie, nonbetrayal of the corporation’s institutional interests and purpose, not their fully faithful attainment. In this way, corporate law discourse can express a strong coherent demand that directors loyally serve the private corporation’s distinctive purposes even as public courts, institutionally, can only enforce a weaker demand that directors not betray those interests.

Johnson, Lyman, Relating Fiduciary Duties to Corporate Personhood and Corporate Purpose (2016). Research Handbook on Fiduciary Law, D Gordon Smith amd Andrew Gold, eds, Edward Elgar, 2016 forthcoming; U of St. Thomas (Minnesota) Legal Studies Research Paper No 16-19.

Danielle Crinnion, ‘Get Your Own Street Cred: An Argument for Trademark Protection in Street Art’

This note argues for the grant of trademark protection to street artists. The appropriation of street art by retailers is becoming increasingly commonplace, causing consumer confusion in the marketplace. As a result, street artists are bring intellectual property claims, including trademark infringement. There are many challenges a street art faces in bringing a successful trademark infringement claim under § 43(a) of the Lanham Act. These challenges include proving artists have used their mark in commerce and addressing concerns that trademark protection intrudes on other intellectual property laws. This note examines the reasons why courts should broadly interpret use in commerce to validate marks used by street artists. There have been debates regarding whether artists are entitled to trademark protection given the expressive nature of their marks. Courts are reluctant to grant trademark protection to artists. Street art should be exempt from this treatment. Most street artists, as opposed to other artists, use marks in a trademark manner. They use their marks to build reputations and identify the source of their works. As this use is in line with trademark use, street artists should be entitled to trademark protection. Used in commerce means use in commerce that is covered by the Commerce Clause. A broad interpretation of the Commerce Clause would include activity that substantially affects commerce. This note argues that courts should broadly interpret the Commerce Clause to encompass street art, which is mostly a non-commercial activity. This broad interpretation furthers Congress’s intent under trademark law to prevent consumer confusion. In the alternative, this note contemplates treatment of street artists under the eleemosynary standard reiterated in Planetary Motion Inc v Techplosion, Inc and considers the possibility of adding a famous mark exception to the use in commerce requirement.

Crinnion, Danielle, Get Your Own Street Cred: An Argument for Trademark Protection in Street Art (July 15, 2016). Boston College Law Review, forthcoming.

Rebecca Tushnet, ‘What’s the Harm of Trademark Infringement?’

Over the course of the twentieth century, judges came to accept trademark owners’ arguments that any kind of consumer confusion over their relationship to some other producer caused them actionable harm. Changes in the law of remedies, however, have recently led some courts to question these harm stories. This Article argues for even more attention to trademark’s theories of harm; a clear-eyed look at the marketing literature, as well as the facts of particular cases, indicates that confusion about non-competing products is often harmless.

Tushnet, Rebecca, ‘What’s the Harm of Trademark Infringement?’, Akron Law Review: Volume 49: Issue 3, Article 1 (2015).

Paul Babie, ‘Magna Carta And The Forest Charter: Two Stories Of Property What Will You Be Doing In 2017?’

“In this octocentenary year of Magna Carta, the title of this Article might seem odd. Why ask about our plans for 2017? Baroness Miller of Chilthorne Domer posed the same question to the government of the United Kingdom in the House of Lords on June 4, 2015: ‘To ask Her Majesty’s Government whether they will mark the 800th anniversary in 2017 of the granting of the Charter of the Forest in a similar way to that in which the Magna Carta is being marked this year.’ The government took two weeks to …” (more)

Paul Babie, ‘Magna Carta And The Forest Charter: Two Stories Of Property What Will You Be Doing In 2017?’ 94 North Carolina Law Review 1431 (2016).

Call for Papers: Italian Society of Law and Economics, 12th annual conference, Torino, 16-17 December 2016

The Italian Society of Law and Economics (ISLE – SIDE) welcomes submissions of papers on any topic regarding the Economic Analysis of Law for its 12th annual conference to be held in Torino (Italy) on December 16-17, 2016, at Campus Luigi Einaudi of University of Turin, hosted by the IEL International program in Institutions, Economics and Law. ISLE-SIDE invites contributions in all aspects related to Law and Economics, such as Bankruptcy, Behavioural Law and Economics, Competition Policy and Antitrust Law and Economics, Corporate Governance and Corporate Law, Criminal Law, Environmental Law and Economics, Constitutional Law and Economics, Family Law and Economics, History of Law and Economics Thought, Institutional and New-Institutional Economics, Intellectual Property, Judicial Decision-Making, Law & Social Norms, Law and Finance, Regulation, Securities Law, and Taxation … (more)

Elizabeth Chika Tippett, ‘Using Contract Terms to Detect Underlying Litigation Risk: An Initial Proof of Concept’

This preliminary study examines whether the presence or absence of certain terms in a company’s form contracts can reveal its level of litigation risk.

First, I estimate the risk of independent contractor misclassification litigation for service-based ‘sharing economy’ businesses by measuring the amount of control they exercise over their contractors. The estimates reveal that sharing businesses exercise varying amounts of control over their independent contractors, such that some businesses are exposed to a higher level of litigation risk than others.

Next, I analyze each company’s form contracts for provisions intended to mitigate misclassification-related litigation risk (‘misclassification provisions’). I then test whether the presence of such provisions predict a company’s estimated litigation risk on both in sample and out-of-sample data.

Results suggest that the number of misclassification provisions in a company’s form contract is generally predictive of its estimated litigation risk, although the sample used in this study was small. The regression model was predictive of risk estimates on out-of-sample data.

Results tentatively support the hypothesis that the presence of certain contract provisions can signal greater underlying liability. Lawyers may inadvertently broadcast underlying liability when they add provisions intended to mitigate a perceived litigation risk.

Tippett, Elizabeth Chika, Using Contract Terms to Detect Underlying Litigation Risk: An Initial Proof of Concept (March 15, 2016). Lewis and Clark Law Review, Vol 20, 2016, forthcoming.