Kane and London, ‘The Pride of the Common Law: Oklahoma’s Struggle With the Prima Facie Tort Action’

… we analyze the existence of the prima facie tort under Oklahoma law. This paper begins with an overview of the development of the tort, with a focus on the foremost American proponent of the proposition, the esteemed Oliver Wendell Holmes. In Part II, we examine the historic application of the tort in the Oklahoma courts. Part III addresses the divergent opinions produced by the Oklahoma Civil Court of Appeals and, in particular, critiques the Tarrant opinion and its determination that the tort does not lie in Oklahoma. Part IV reviews the application of the tort in other jurisdictions. We conclude with our contention that Oklahoma has adopted the prima facie tort and suggest that it plays a useful but limited role in Oklahoma litigation …

Matthew C Kane and Ivan L London, The Pride of the Common Law: Oklahoma’s Struggle With the Prima Facie Tort Action, 52 Tulsa Law Review 41 (2017).

Christopher Essert, ‘Nuisance and the Normative Boundaries of Ownership’

A nuisance is an unreasonable interference with an owner’s right to use and enjoy her land. The tort of nuisance must be understood if we are to understand the nature, scope, and justification of private property rights. As the latter task is among the most important ones facing legal and political philosophers in a democratic society, such as ours, the former is crucial. Yet, we lack anything like a viable theory of nuisance law. The two most prominent – the economic view and the physical-invasion view – both fail, doctrinally and normatively. Things are so bad for nuisance that it has been called a ‘legal garbage can’. We can do better, and we need to do better. Nuisance law protects owners by protecting their normative control, their capacity to determine what will happen on their land, and protects the core of their rights as owners of real property. Moreover, the scope of nuisance law helps fix the scope of this normative control; in other words, nuisance is partially determinative of the normative boundaries of ownership. Looking at nuisance helps reveal a distinctive understanding of private ownership and thus, reveal property rights’ place as partially constitutive of a just society. Looking at nuisance this way also helps us see why its core doctrines are what they are: the reasonability standard at the heart of nuisance, along with its core doctrines relating to locations, time, and the objectivity of nuisance all bring out a normatively attractive vision of nuisance law and, therefore, of private property rights.

Christopher Essert, Nuisance and the Normative Boundaries of Ownership, 52 Tulsa Law Review 85 (2017).

Leon Trakman, ‘Public Responsibilities Beyond Consent: Rethinking Contract Theory’

This Article argues for a vital new pathway to the regulation of contracts in American law. It proposes a theory of public responsibility to safeguard public values that are unprotected by the reciprocal consent of private parties to contract. Challenging the conception of contracts-as-property-rights, it posits that such responsibilities are necessary to redress public harm that is ordinarily not protected by the exchange of contractual promises. If contract law is to support social justice, it ought to surpass restrictive conceptions of equity that focus wholly on corrective injustice between contracting parties at the expense of public deterrence. If contract regulation is to promote the public good, it ought to transcend limiting theories of consent that reduce public responsibilities to imperfect obligations that are binding in morality, but not in law …

Leon E Trakman, Public Responsibilities Beyond Consent: Rethinking Contract Theory, Hofstra Law Review, volume 45, issue 1, Fall 2016.

Mariana Pargendler, ‘Comparative Contract Law and Development: The Missing Link?’

Contract law has long been a favorite area of study among comparative law scholars. Economists have posited that contract institutions play a central role in economic development. Yet, in sharp contrast to the state-of-the-art in other fields (such as corporate law and bankruptcy law), the possible role of contract laws in shaping economic outcomes remains largely neglected. This essay explores the main reasons that might explain this status quo. These are: (i) the lack of meaningful variation in contract laws around the world, (ii) the triviality of contract law, (iii) the ample availability of choice of law, (iv) the US-centric bias of the law-and-economics literature, (v) the lack of public data on contracting practices, and (vi) the boundaries of contract law. It concludes that, while important, these factors are ultimately insufficient to justify the scarcity of works on the economic consequences of contract law, which could be a fruitful area for future research.

Pargendler, Mariana, Comparative Contract Law and Development: The Missing Link? (January 13, 2017). 85 George Washington Law Review (2017 Forthcoming) .

Leng and Wei, ‘The Evolution of Contract Law in China: Convergence in Law But Divergence in Enforcement?’

This chapter provides an overview of the contract law system in the People’s Republic of China (PRC). The central theme of this chapter is that while the black letter contract law has indicated a trend of convergence moving towards some basic norms which appear in other countries’ contract laws and international conventions, enforcement of contract law shows a visible trend of moving towards a hybrid regime combining features of both formal and informal enforcement mechanisms. This paradigm of evolution reveals the intricacies and complexities in China’s contract law regime as well as rule of law movement in general. This chapter will demonstrate how this peculiar pattern of legal development has been formed and how it could inform our understanding of possibilities and ramifications of legal convergence and persistence in an increasingly globalized world.

Leng, Jeng and Wei, Shen, The Evolution of Contract Law in China: Convergence in Law But Divergence in Enforcement? (January 14, 2017). Chapter 3 in: Chung, Shen and Wang (eds), Private Law in China and Taiwan – Legal and Economic Analyses (Cambridge: Cambridge University Press 2016).

Roderick Wood, ‘The Codification of Canadian Commercial Law’

Canada has traditionally been a borrower of laws. In the commercial law field, it borrowed the English codifications of negotiable instruments law and sales law during the late Victorian era. More recently it borrowed the United States Uniform Commercial Code codifications on personal property security law and securities transfer law. The problems associated with the Victorian codifications and with the modern codifications are different. The primary problem afflicting the Victorian commercial law codifications is that of statutory obsolescence. The primary problem with the modern codifications is that of non-uniformity. The paper examines the problem of statutory obsolescence and the problem of non-uniformity and identifies some ameliorating measures while recognizing that there will be a perpetual struggle against these two tendencies.

Wood, Roderick J, The Codification of Canadian Commercial Law (September 1, 2016). Saskatchewan Law Review, Vol 79, p 179, 2016.

Cafaggi and Iamiceli, ‘The Principles of Effectiveness, Proportionality and Dissuasiveness in the Enforcement of EU Consumer Law: The Impact of a Triad on the Choice of Civil Remedies and Administrative Sanctions’

In the conventional approach, rights were defined by EU law, while remedies were established by national legal orders. The situation has changed. The principle of procedural autonomy has been severely limited by general principles, such as the ones of effectiveness and equivalence. The power of Member States to define procedures, sanctions and remedies is strongly affected by the principles of effectiveness, proportionality and dissuasiveness.

This article will examine the principles of effectiveness, proportionality and dissuasiveness as a triad. The concept of triad is used both as an illustration and as an analytical tool. It is an illustration, since it reflects the frequent and contextual reference by EU secondary law to the three principles as distinct prescriptions to be complied with by the Member States. It is an analytical tool, since it enables the interpreter to look at diversities and complementarities within the triad as part of a coherent and harmonious system of rules. The main purpose is to examine the impact of the triad in the judicial dialogue that emerges among national and EU courts addressing consumer law cases. More particularly, the analysis will focus on the configuration, the choice and the functioning of civil remedies in consumer law, analyzing the case law arising in some of the Member States of the EU …

Cafaggi, Fabrizio and Iamiceli, Paola, The Principles of Effectiveness, Proportionality and Dissuasiveness in the Enforcement of EU Consumer Law: The Impact of a Triad on the Choice of Civil Remedies and Administrative Sanctions (January 13, 2017).

van Veen and Duin, ‘Dutch Trusts and Trust-Like Arrangements’

Although the trust, as such, is not a legal concept in Dutch law and is difficult to fit into the current Dutch legal framework, there are certain Dutch legal concepts that share characteristics of a trust or that share the functionality of the trust. In this contribution, the subject matter of trusts in Dutch law is approached both from the perspective of trust characteristics as well as from the perspective of the functionality of the trust as a concept. This research is not only of interest for academic purposes, but also in the context of potential future legislation introducing the trust into Dutch law. We conclude that there is no fundamental objection against the introduction of the trust or new trust-like concepts in Dutch law. The introduction of a trust as a general concept would, however, require a substantial change of law.

Wino JM van Veen and Hjalmar MC Duin, ‘Dutch Trusts and Trust-Like Arrangements’ (2016) 24 European Review of Private Law, issue 6, pp973–993.

Lachlan Caunt, ‘Hows, Whys, and But-Fors: Theorizing, Comparing, and Solution Finding within the Principle of Material Contribution to Risk in the Law of Negligence’

Material contribution to risk is a principle of tort causation; yet has never been applied. It may potentially violate all of the principles that underpin tort causation, whatever those principles may be. Alternately, it may simply be another conventional adaptation of tort causation to avoid manifest injustice. The supposition is that it will fall somewhere between. This work contributes to the literature converting this supposition into knowledge.

This work has three parts. The first seeks to do what few in tort writing do: craft a methodology. The first part compares and contrasts the theory that underpins tort law, the law of negligence, and finally, the theory of causation. Any choice in the latter part of the article is obviously conditioned on which theory explains the actual benefits and harms of such a choice.

The second part uses comparison to determine where the Canadian law of material contribution to risk currently rests. The Canadian jurisprudence is relatively sparse; while the UK jurisprudence is fulsome. By showing the fundamental dissimilarities between the intimations of the Canadian and UK jurisprudence, this part shows that the two jurisdictions are, and should continue to be, unique.

The third part considers two areas of material contribution to risk that are fundamentally unclear. Firstly, circumstances in which material contribution to risk can apply in lieu of the de facto but-for test are, at best, transparent. This section is termed the ‘trigger’ section – and probes when material contribution to risk can be applied instead of the de facto but-for test. Secondly, who is liable for what under material contribution to risk is also unclear. This section is termed apportionment – and determines which liability rule should determine which defendant should be liable for what share of the damages.

Caunt, Lachlan Thomas, Hows, Whys, and But-Fors: Theorizing, Comparing, and Solution Finding within the Principle of Material Contribution to Risk in the Law of Negligence (December 18, 2015).

Isué Natalia Vargas-Brand, ‘Uniform Rules for European Contract Law? A Critical Assessment’

The international conference ‘Uniform rules for European Contract Law? A critical assessment’ was organized by the IE University and IE Center for European Studies under the direction of Prof Francisco de Elizalde on 23 and 24 June 2016. A group of leading academics in this field ‒ coming from different countries and legal cultures ‒ attended a conference in Segovia (Spain), on the occasion of the 30th anniversary of Spain’s incorporation into the European Economic Community (EEC)/European Union (EU), to discuss and analysed the current need for uniform rules in European Contract Law.

Isué Natalia Vargas-Brand, ‘Uniform Rules for European Contract Law? A Critical Assessment’ (2016) 24 European Review of Private Law, issue 6, pp1245–1250.