‘Legal Theory Lexicon: Virtue Ethics’

“The Legal Theory Lexicon already includes posts on Deontology and Utilitarianism – representing two important families of ethical theory. This week, the Lexicon provides an introduction to virtue ethics. As always, the Lexicon provides a quick and dirty summary with an eye to law students (especially first-year law students) with an interest in legal theory. Together, these three posts provide a rough and ready introduction to the three most prominent approaches to normative ethics …” (more)

[Lawrence Solum, Legal Theory Blog, 23 June]

Jessica Hudson, ‘One Thicket in Fraud on a Power’

This article considers the effect of fraud on a power as it applies to private powers arising across a range of institutions, such as express trusts, agency and companies. The article makes two main arguments. First, the effect of fraud on a power is determined by the equitable nature of the doctrine and its interaction with a particular type of power. The significance is that the effect of fraud on a power cannot be described as either voidness or voidability. There is a more important question as to the priority of equity’s response to fraud on a power. The second argument is that equity calibrates its response to fraud on a power depending on the method by which the power is devolved. The article goes on to consider the justification for this calibration, including the risk profiles that inhere in the different ways that institutions devolve power.

Jessica Hudson, One Thicket in Fraud on a Power, Oxford Journal of Legal Studies, https://doi.org/10.1093/ojls/gqz017. Published: 20 June 2019.

Andreas Rahmatian, ‘Electronic Money and Cryptocurrencies (Bitcoin): Suggestions for Definitions’

Electronic currencies and cryptocurrencies, like Bitcoin, are technological innovations but not novelties from a legal-conceptual perspective. This article seeks to provide definitions for ‘electronic currencies’ and ‘cryptocurrencies’ alongside the traditional forms of money. It becomes apparent that Bitcoin is not real ‘money’ but relies on existing currency. At present, its actual role is rather to enable speculation and to circumvent fiscal regulations.

Rahmatian, Andreas, Electronic Money and Cryptocurrencies (Bitcoin): Suggestions for Definitions (March 20, 2019). Journal of International Banking Law and Regulation (2019), volume 34(3), pp 115-121.

Rehan Abeyratne, ‘Ordinary Wrongs as Constitutional Rights: The Public Law Model of Torts in South Asia’

… While private tort law has remained stillborn in South Asia, constitutional law in the region has blossomed. In the 1980s and 90s, the Indian Supreme Court vastly expanded its constitutional jurisdiction through a series of procedural innovations known as Public Interest Litigation (PIL), which has been emulated across the region. This article examines how, under the guise of PIL, courts in India, Sri Lanka, and Bangladesh have brought large swathes of private law – tort law especially – into the realm of public law. The article analyzes the doctrinal moves through which this process took place and advances two novel claims. First, contrary to the conventional wisdom, it argues that tort law has developed substantially in South Asia since the 1980s, but through a sui generis, public law model that is distinct from the traditional, private law model. Second, after weighing the costs and benefits of this model, the article concludes that for procedural, normative, and institutional reasons, the model is deeply problematic and fails to fill the vacuum that has been created by the absence of private torts …

Abeyratne, Rehan, Ordinary Wrongs as Constitutional Rights: The Public Law Model of Torts in South Asia (June 20, 2019). 54 Texas International Law Journal (2019) (forthcoming).

Schultz and Bachmann, ‘A Wig for Arbitrators: What Does it Add?’

This essay (meant for a forthcoming and at this stage undisclosed Festschrift) sketches a preliminary examination of the type of social order that hybrid international commercial courts might contribute to creating or sustaining. It starts by reviewing the arguments advanced, implicitly or expressly, in favour of the development of these hybrid courts. These revolve, it finds, around signalling the return of the state and the figure of the judge in the world of private international dispute resolution, which comes with likely expectations of better societal representation and greater consideration of common state interests, and around mobilizing the ameliorating invisible hand of competition on the dispute resolution market. The essay then critical considers these arguments and assesses other likely societal effects of these courts. It suggests that hybrid courts offer new opportunities to the privileged few and may thus contribute to increasing social inequalities, and that nothing currently indicates that hybrid court judges will be more representative than the existing pool of international arbitrators. In the end, the essay argues that the development of hybrid commercial courts, meant to allow private dispute resolution to expand its markets, may backfire, further fuelling the current pushback against privatized dispute resolution.

Schultz, Thomas and Bachmann, Clément, A Wig for Arbitrators: What Does it Add? (June 17, 2019).

Hodge and Gostin, ‘Guiding Industry Settlements of Opioid Litigation’

The recent $270 million settlement of Purdue Pharmaceuticals and the State of Oklahoma on March 26, 2019 concerning the state’s opioid litigation is a harbinger of industry settlements to come. Thousands of opioid-related cases with impending trial dates may stimulate opioid manufacturers, distributors, and retailers to seek new deals to escape historic liability. Against a backdrop of massive damage potential of a two decade opioid epidemic, reaching appropriate settlements is key. Parties to opioid lawsuits must balance an array of factors to assure industry accountability while preserving access to opioids among legitimate patients seeking palliative care. These factors include (1) a primary focus on contemporary treatment and prevention strategies supplemented by research innovations; (2) primary access to life-saving treatments for at-risk individuals; (3) fair and equitable allocation of settlement resources; (4) dedication to lawful, efficacious interventions; (5) cross-sharing of industry data and practices to promote good faith compliance; and (6) continued assurance of access to palliative care for deserving patients.

Hodge, James G and Gostin, Lawrence O, Guiding Industry Settlements of Opioid Litigation (June 1, 2019).  American Journal of Drug and Alcohol Abuse 2019; June 12, 2019.

Johanna Jacques, ‘Property and the Interests of Things: The Case of the Donative Trust’

Within a liberal, ‘law of things’ understanding of property, the donative trust is seen as a species of gift. Control over trust property passes from the hands of settlors to beneficiaries, from owners to owners. Trust property, like all other property, is silent and passive, its fate determined by its owners. This article questions this understanding of the trust by showing how beneath the facade of ownership, the trust inverts the relation between owner and owned, person and thing. It analyses the relation that trustees, beneficiaries and settlors have to the trust property and argues that the role of each of these parties can be shown to consist in furthering the interests of the trust property rather than their own. It claims that this protects things from their owners at the same time as it ensures these owners’ ongoing care towards the things they own. This raises questions about the trust’s status within the institution of private property, justified as it is by the human autonomy it is said to enable.

Jacques, Johanna, Property and the Interests of Things: The Case of the Donative Trust (April 12, 2019). Law and Critique 30(2): 201-220 (2019).

Laskowska-Litak and Mania, ‘Copyright as a Service: How Does the Development of the Music Business Determine the Shape of Copyright?’

The process and the development of new technologies have brought about several changes in the domestic (international and European) copyright legal system. Copyright itself from the beginning was a reflection of the possible ways of works exploitation. However, with the impetus of new business models it is starting to not answer to the more and more basic questions about the permitted and not allowed use of a work. The proposed paper introduces the topic of a (new) perspective of copyright law, which may (or may not) be considered in the event of a (European) discussion about future legislation in this area.

Laskowska-Litak, Ewa and Mania, Grzegorz, Copyright as a Service: How Does the Development of the Music Business Determine the Shape of Copyright? (2016). Zeszyty Naukowe Uniwersytetu Jagiellońskiego. Prace z Prawa Własności Intelektualnej 2016, volume 132, ISSN 1689–7080, pp 91-103.

Jacob, Klement and Procaccia, ‘In-Kind Transfers and the Law of Torts’

The state and charitable institutions provide in-kind services for distributive purposes. Such services generally benefit recipients but in particular instances may also cause them harm. We discuss the optimal tort regime that should apply when such harm occurs. We show that the optimal level of care applicable to such services is lower than if the same services are provided by ordinary injurers in the general market. We further demonstrate that the social optimum can be induced by a lenient gross-negligence standard, whereas the standard regimes of ordinary negligence and strict liability both lead to inefficient outcomes. These conclusions are robust to variations in the distribution of recipients’ valuations of the service and to possible agency problems in the state or charity.

Jacob, Assaf M and Klement, Alon and Procaccia, Yuval, In-Kind Transfers and the Law of Torts (May 29, 2018). Journal of Legal Studies, volume 47, no 1, 2018.

Susan Haack, ‘The Academic-Publication Racket: Whatever Happened to Authors’ Rights?’

Academic publishing has become big business; and as a result both readers’ access and authors’ rights are under serious threat. This impedes communication, and undermines academics’ incentive to do the best work they can. I begin by disentangling some of the many factors that have created this disastrous situation – focusing primarily on publishing in philosophy, though I suspect that things are equally bad across the humanities, and beyond. Then I describe some of the ways I have tried to make my work widely available and to maintain control of its re-use; and how, despite my best efforts, this has got harder and harder as academic publishing has grown more and more inhospitable to authors’ interests. Of course, simply writing about what a mess academic publishing has become won’t, by itself, improve things. But my hope is that, by articulating what’s gone so wrong, I can reassure readers that their frustration isn’t unique, and perhaps persuade them to fight back in some of the ways I will suggest in my concluding pages, and in other ways they can see that I haven’t thought of. And perhaps, if more of us turn our minds to thinking about what might help change the situation, and join in the effort, things might gradually get better.

Haack, Susan, The Academic-Publication Racket: Whatever Happened to Authors’ Rights? (2019). Borderless Philosophy 2 (2019): 1-21.