Ralph Brashier, ‘Incapacity and the Infancy Illation’

As the population of elderly Americans swells in coming decades, growing numbers of citizens will experience some degree of cognitive incapacity and require the assistance of surrogate decision-makers. Consequently, the decisions of guardians, conservators, and agents will become increasingly important. Experts have frequently noted that, despite modern reforms, doctrines concerning surrogate decision-making are problematic and often do not result in outcomes that maximize autonomy and promote respect for the unique personhood of the adult with diminished capacity. Unlike other writings that seek to refashion or clarify surrogate decision-making statutes and standards, this Article suggests that a more fundamental problem lies in our inherent, if unwitting, tendency to infantilize the elderly and other adults with diminished capacity. Until we acknowledge and examine our biases and prejudices about age and incapacity, we as surrogate decision-makers will continue to make unfortunate choices for those whom we seek to assist, regardless of definitional changes in decision-making statutes and standards.

Ralph C Brashier, Incapacity and the Infancy Illation, 71 Arkansas Law Review 1 (2018).

Robin Bowley, ‘The Progressive Evolution of Australian Insurers’ Duty of Utmost Good Faith to Third Party Claimants’

Over recent decades, the significance of third parties in the insurance contractual relationship has progressively increased. In Australia, challenges by claimants with entitlements under group life insurance policies providing Total and Permanent Disablement (TPD) benefits, which are commonly arranged by trustees of superannuation funds to provide benefits to incapacitated members, have been a key driver of this trend. Several cases where third party claimants have successfully challenged the decision-making processes of insurers in declining TPD claims have provided useful clarifications of the nature, extent and limits of Australian insurers’ post-contractual duties of utmost good faith. Through a progressive review of the key Australian authorities, this article examines the examples of conduct by insurers that have been held to breach the duty of utmost good faith. It also shows that through recognizing the standing of third parties, several of these decisions have provided the impetus for amendments to the Insurance Contracts Act 1984 (Cth), which now recognizes that insurers also owe the duty of utmost good faith to third party claimants.

Bowley, Robin, The Progressive Evolution of Australian Insurers’ Duty of Utmost Good Faith to Third Party Claimants (March 1, 2016). Insurance Law Journal, volume 27, no 3, pp 194-213, 2016.

Jesse Wall, ‘The functional-formal impasse in (trust) property’

This paper identifies an impasse between two conceptions of ‘property rights’. Formal conceptions explain ‘property rights’ in terms of an alienable right to exclude, that has moral significance in terms of individuals’ preference satisfaction, and describe a trust beneficiary as having a right against the trustees’ right. Functional conceptions explain a ‘property right’ in terms of the entitlements in a resource, which has moral significance in terms of a range of individual and social values, and describe a trust beneficiary as having a share in entitlements in the resource. This impasse has general implications for the normative analysis of property law and particular implications for the practical application of redistributive statutory provisions to discretionary trusts. The solution to this impasse lies in the abandoning the language of ‘property’ when we are concerned with the entitlements in a resource.

Jesse Wall, The functional–formal impasse in (trust) property, International Journal of Law in Context, volume 14, issue 3, September 2018, pp 437-453.

Stephanie Collins, ‘When does “Can” imply “Ought”?’

The Assistance Principle is common currency to a wide range of moral theories. Roughly, this principle states: if you can fulfil important interests, at not too high a cost, then you have a moral duty to do so. I argue that, in determining whether the ‘not too high a cost’ clause of this principle is met, we must consider three distinct costs: ‘agent-relative costs’, ‘recipient-relative costs’ and ‘ideal-relative costs’.

Stephanie Collins, When does ‘Can’ imply ‘Ought’?, International Journal of Philosophical Studies. Published online: 20 Sep 2018. https://doi.org/10.1080/09672559.2018.1489643.

Joseph Page, Review of Causation in European Tort Law (Infantino and Zervogianni eds)

“The disarming yet deceptively complex topic of causation in tort law has long fascinated scholars in North America. It also provides a formidable challenge that the ‘Common Core of European Private Law’ publishing project has now confronted as part of its ambitious endeavor to identify and analyze the commonalities and divergences that characterize European private law. With a pair of promising young scholars (Marta Infantino and Eleni Zervogianni) at the helm, Causation in European Tort Law applies a unique analytical approach to comparative law that has become the trademark of the Common Core enterprise, and that seeks to provide what it claims …” (more)

Joseph A Page, ‘Causation in European Tort Law (Marta Infantino and Eleni Zervogianni eds, Cambridge University Press, 2017)’, The American Journal of Comparative Law, https://doi.org/10.1093/ajcl/avy035. Published: 15 September 2018.

Matthew Willison, ‘Were Banks Special? Contrasting Viewpoints in Mid-Nineteenth Century Britain’

In 1853 a Royal Commission was set up to investigate whether laws related to limited liability in Britain needed to be modified. As part of its evidence gathering the commission issued a questionnaire that included a number of questions on whether banks should be subject to the same liability laws as other types of commercial enterprises. This paper analyses the responses to the questions about banks to understand whether banks were seen as a special case. Support for modifying the law to make limited liability more easily available to banks was lower than for enterprises in general. Banks were seen as a special case because of the risk of bank runs and because their creditors were not able to assess accurately the riskiness of banks. But the special nature of banks caused others to favour limited liability because it made banks’ capital levels more transparent. These arguments echo wider debates during the nineteenth century and are similar to contemporary theories for why banks are regulated.

Willison, Matthew, Were Banks Special? Contrasting Viewpoints in Mid-Nineteenth Century Britain (September 14, 2018). Bank of England Working Paper No 755.

Just Published: Anthony Gray, Vicarious Liability – Critique and Reform

The scope of vicarious liability has significantly expanded since its original conception. Today employers are being found liable for actions of employees that they did not authorise, and never would have authorised if asked. They are being held liable for an employee’s criminal activity. In the related strict liability field of non-delegable duties, they are being held liable for wrongdoing of independent contractors.

Notions of strict liability have grown increasingly isolated in the law of tort, given the exponential growth in the tort of negligence. They require intellectual justification. Such a justification has proven to be elusive and largely unsatisfactory in relation to vicarious liability and to concepts of non-delegable duty. The law of three jurisdictions studied has now apparently embraced the ‘enterprise risk’ theory to rationalise the imposition of vicarious liability. This book subjects this theory to strong critique by arguing that it has many weaknesses, which the courts should acknowledge. It suggests that a rationalisation of the liability of an employer for the actions of an employee lies in more traditional legal doctrine which would serve to narrow the circumstances in which an employer is legally liable for a wrong committed by an employee.

Anthony Gray, Vicarious Liability – Critique and Reform. 296pp. ISBN: 9781509920235. Hart Studies in Private Law. RRP £65.00.

Zywicki and Stringham, ‘Austrian Law and Economics and Efficiency in the Common Law’

Is the common law efficient? Neoclassical economists debate whether our inherited systems of judge-made law maximize wealth whereas Austrian economists typically adopt much different standards. The article reviews neoclassical and Austrian arguments about efficiency in the common law. After presenting Hayek’s views on the common law as a spontaneous order it concludes that the common law can indeed be viewed as a spontaneous order only when judges provide their services in a free and competitive system.

Zywicki, Todd J and Stringham, Edward Peter, Austrian Law and Economics and Efficiency in the Common Law (September 19, 2018). Research Handbook on Austrian Law and Economics, Todd Zywicki and Peter Boettke (eds), Edward Elgar, 2017; George Mason Law and Economics Research Paper No 18-30.

John Eldridge, ‘The New Law of Penalties: Mapping the Terrain’

This paper gives an account of recent developments in respect of the penalty rule in Australia and England, before going on to explore two unresolved questions. The first is whether Australian law recognises two jurisdictions to relieve against penalties – one in equity and another at common law – or instead a unitary penalty doctrine. The second is the important question of how the recent developments are playing out ‘on the ground’.

Eldridge, John, The New Law of Penalties: Mapping the Terrain (September 19, 2018). Journal of Business Law [2018] forthcoming; Sydney Law School Research Paper No 18/56.

Cathy Sherry, ‘Teaching land law – An essay’

In 2011, fellow property teachers Penny Carruthers, Natalie Skead and Kate Galloway conducted a valuable and comprehensive survey of the teaching of the compulsory property law unit in Australian law schools. Their published findings provided rich empirical data on our practices, and aimed to ‘stimulate discussion and foster the further exploration of the challenges that confront property law teachers in teaching property law in the twenty-first century’. This essay takes up that discussion. First, the essay contains observations made and lessons learned over a twenty year career of teaching property and writing curricula, at both undergraduate and postgraduate level, in compulsory subjects and electives, in a large law faculty, in a research-intensive university. Second, it is an attempt to drill down into a specific property curriculum, teaching methods and assessment, fleshing out detail on issues raised by Carruthers, Skead and Galloway’s research. The essay is intended as a conversation with property teachers of all varieties; those of us who have taught the subject for considerable time, but also younger teachers who, in accordance with time-honoured tradition, may have been press-ganged into teaching property as a condition of their employment. No minor challenge.

Sherry, Cathy S, Teaching land law – An essay (January 1, 2016). (2016) 25 Australian Property Law Journal 129; UNSW Law Research Paper No 18-65.