Renee Lettow Lerner, ‘The Failure of Originalism in Preserving Constitutional Rights to Civil Jury Trial’

The Federal Bill of Rights and state constitutions rely heavily on procedural protections, especially jury rights. Supporters of these rights at the founding praised the jury in extravagant terms, and many members of the legal profession continue to do so today. Yet civil and criminal jury trials are vanishing in the United States. The disappearance of the civil jury presents a puzzle because the Seventh Amendment and state constitutional rights require that civil jury trial be “preserved” or “remain inviolate”.

Scholarship on the history of constitutional rights to civil jury trial has tended to focus exclusively on the Seventh Amendment, particularly at the time of the founding or during the modern era. This Article examines both state and federal courts’ interpretations of constitutional rights from the late eighteenth through the early twentieth century. It demonstrates that courts during that time adopted originalist tests. These tests, however, proved so flexible that they allowed legislatures and courts great discretion in modifying civil jury trial. The civil jury was no longer valued as a law-nullifying institution, as it had been at the founding, but instead was considered a hindrance to the administration of justice. Courts were concerned to accommodate changed circumstances, such as growing docket pressure and expense of litigation, and emphasized the impossibility of maintaining every detail of original practice. Once the anchor of original jury practice was abandoned, the jury right seemed tethered to no definite meaning. The one exception was the jurisprudence of the U.S. Supreme Court under the Re-examination Clause of the Seventh Amendment, but even that strict historical test proved able to be circumvented. This history suggests problems with maintaining procedural rights more generally.

Lerner, Renee Lettow, The Failure of Originalism in Preserving Constitutional Rights to Civil Jury Trial (October 17, 2014). William & Mary Bill of Rights, Vol 28, p 811, 2014; GWU Law School Public Law Research Paper No 2014-52; GWU Legal Studies Research Paper No 2014-52.

Jim Hawkins, ‘Law’s Remarkable Failure to Protect Mistakenly Overpaid Employees’

Employers frequently make mistakes and overpay their employees. For instance, the federal government alone, which makes up only around 2% of the US workforce, will likely overpay its employees by $2 billion this year. After discovering the error, employers often recoup the mistaken overpayments without the supervision of the courts by simply exercising a self-help remedy — setting-off the debt against the employees’ paychecks. The law of restitution enables this recovery because overpaying on a contract is a prototypical example of unjust enrichment. For some employees, the entire transaction is trivial, but for many others, losing significant portions of their wages and suffering from aggressive collection techniques drive the employees and their families into financial distress.

Remarkably, current law does virtually nothing to protect employees who are indebted to their employers, and scholarship on restitution, creditor-debtor law, and employment law has not recognized this near absolute absence of protection. This Article uncovers law’s failure to protect mistakenly overpaid employees and suggests judicial and legislative action to protect this vulnerable group.

Hawkins, Jim, Law’s Remarkable Failure to Protect Mistakenly Overpaid Employees (October 17, 2014). Minnesota Law Review, Vol 99, 2014, forthcoming.

Mitchell Berman, ‘Abuse of Property Right Without Political Foundations: A Response to Katz’

In an article recently published in the Yale Law Journal, Larissa Katz defends a heterodox principle of abuse of property right pursuant to which an owner abuses her rights with respect to a thing she owns if she makes an otherwise permitted decision about how to use that thing just in order to harm others, either out of spite, or for leverage. Katz grounds that principle in a novel theory of the political foundations of the institution of property ownership. This essay argues that Katz’s political theory is implausible, but that this should not doom her preferred principle of abuse of property right. Further, the essay bolsters Katz’s abuse principle by showing how it, or close analogues, helps resolve both the paradox of blackmail and the puzzle of unconstitutional conditions.

Berman, Mitchell N, Abuse of Property Right Without Political Foundations: A Response to Katz (August 13, 2014). Yale Law Journal Forum, Vol 124, pp 42, 2014; U of Penn Law School, Public Law Research Paper No 14-33.

Zhuang WenXiong, ‘The Quistclose resulting trust as a proprietary response to unjust enrichment: A bridge too far?’

An analysis of the jurisprudential nature of the Quistclose trust reveals that it is a species of resulting trust. The cases support a unified theory of resulting trust, which arises whenever the transferor has no intention to benefit the recipient. However, this unified theory poses the question of whether the resulting trust arises in response to unjust enrichment or is merely a vindication of a pre-existing property interest. The main thrust of this article is that, despite the unified theory, the resulting trust cannot and should not be rationalised as a response to unjust enrichment for both logical-legal and practical reasons. The resulting trust should be rationalised as a set of institutional equitable rules, which by custom have been regarded to have proprietary effects, and is at root a vindicatio claim.

Zhuang, WenXiong, The Quistclose resulting trust as a proprietary response to unjust enrichment: A bridge too far?. Singapore Academy of Law Journal, Volume 26, No 2, Sept 2014: 649-686.

Book Forum: Hanoch Dagan, Reconstructing American Legal Realism and Rethinking Private Law Theory (2013)

The book forum is inspired by Hanoch Dagan’s Reconstructing American Legal Realism and Rethinking Private Law Theory (2013).

Alan Brudner, Realism’s Illusions

Dan Farbman, The Scalpel and the Salve: Rekindling Romantic Realism

Joseph William Singer, Private Law Realism

Laura S Underkuffler, Reality and Illusion

Hanoch Dagan, Defending Legal Realism: A Response to Four Critics

Critical Analysis of Law Vol 1, No 2 (2014)

Van Boom, Garde and Akseli, ‘Introduction to The European Unfair Commercial Practices Directive

In 2005, the EU Directive on Unfair Commercial Practices was adopted. The UCP Directive has the ambitious aim of addressing unfair commercial practices directly related to distorting consumers’ economic behaviour concerning transactional decisions. In this introductory chapter to the edited volume “The European Unfair Commercial Practices Directive – Impact, Enforcement Strategies and National Legal Systems” (Willem van Boom, Amandine Garde and Orkun Akseli (eds); Ashgate 2014), we first give a brief overview of the main features of the Unfair Commercial Practices Directive. Secondly, we sketch three themes that seem to have a prominent presence in all discussions of the Directive: the tension between consumer autonomy, empowerment and protection; the problematic nature of the maximum harmonization principle; and finally the decentralized enforcement framework and the challenges this poses at Member State level. Finally, we introduce the contributions to the volume.

Van Boom, Willem H and Garde, Amandine and Akseli, Orkun, Introduction to ‘The European Unfair Commercial Practices Directive’ (September 1, 2014). Van Boom, Garde and Akseli, The European Unfair Commercial Practices Directive – Impact, Enforcement Strategies and National Legal Systems (Ashgate 2014), 1-18.

George Mocsary, ‘Insuring Against Guns?’

This Article examines whether mandating liability insurance for firearm owners would meet its avowed goals of efficiently compensating shooting victims and deterring unlawful and accidental shootings without creating a net social loss by chilling socially beneficial gun use. In the process, the Article also examines whether non-mandatory liability insurance may enable socially desirable, but potentially risky, firearm-related activities.

The analysis indicates that a compulsory firearm-liability insurance regime is unlikely to attain its goals, and may in fact exacerbate the problems it seeks to solve by incentivizing firearm owners to take less care with their weapons. It also shows that it is markedly unlikely that such a mandate would achieve a significant level of compliance. Optional forms of firearm-liability insurance can, however, enable socially desirable activities by those who would otherwise be unable to bear the risks inherent in those activities.

One of the best ways to incentivize an activity is to compensate it or to remove its financial consequences. Well-meaning legislators, regulators, and industry members would therefore best serve their constituencies by encouraging optional insurance that covers liability risks arising from socially useful activities, rather than pushing for unhelpful mandates that may aggravate the firearm violence that they seek to remedy.

George A Mocsary, Insuring Against Guns?, Connecticut Law Review Volume 46 – Issue 4 (May 2014).

Peter Kochenburger, ‘Liability Insurance and Gun Violence’

Gun violence and mass shootings have dominated headlines during the last several years. These tragedies, including the Sandy Hook Elementary School shooting, received national and international attention and prompted new demands to address gun violence in the United States. Among the many proposals advanced by the media, advocacy groups, legislators, and academics is mandating liability insurance for all gun owners. Proponents point to insurance’s risk assessment and mitigation functions as providing financial incentives and penalties to encourage policyholders to purchase, store, and use firearms in the safest manner possible, with explicit analogies to mandatory auto insurance, and insurance generally, where prudent behavior results in lower premiums and the riskier pay more. Numerous legislative proposals were put forth in 2013; none passed.

This Article’s purpose is to provide a more in-depth scrutiny than has been previously presented on the merits of mandating liability insurance for gun owners. My perspective is through the lens of liability insurance and regulation, and this Article thereby reviews the major issues associated with such proposals—including the likelihood that many defendants in gun-related claims will not carry insurance even if required by law. I conclude that, despite the obvious enforcement problems, insurance’s ability to address and reduce gun violence is a potentially valuable tool. We do not have enough research and information to dismiss its use based on often ill-supported assumptions about what insurance “should” do and how consumers, insurers, and regulators would react to a liability insurance mandate.

Peter Kochenburger, Liability Insurance and Gun Violence, Connecticut Law Review Volume 46 – Issue 4 (May 2014).

Public lecture: Andrew Burrows on ‘Remoteness in Contract: The Rights and Wrongs of The Achilleas’: Trinity College Dublin, 29 October 2014

Professor Andrew Burrows QC will address the Private Law Discussion Group of Trinity College Dublin on ‘Remoteness in Contract: The Rights and Wrongs of The Achilleas’. Professor Burrows is Professor of the Law of England at the University of Oxford and was formerly Law Commissioner for England and Wales. Mr Justice Bryan McMahon will chair the event. This special guest lecture takes place at 5:30pm on Wednesday 29 October. The venue is located off the main campus of Trinity College Dublin, in the Gas Building, D’Olier Street, Dublin 2. This event is open to all and free of charge (registration).

Madeleine Plasencia, ‘No Right to Lie, Cheat or Steal: Public Good v. Private Order’

In the Nichomachean Ethics, Aristotle takes up the task of examining the meaning of “equity and what is equitable — about how equity is related to justice, and what is equitable to what is just”. In this Article, Professor Plasencia takes up Aristotle’s account of the completing role of equity as a lens through which to examine the concepts that inform the legal repudiation of fraud and deceit in three cases at the intersection of torts and contracts. The three cases — though taken from the different substantive areas of marital relations, business mergers, and real estate transactions — are shown in this Article to occupy a common field of meaning in which law repeatedly has been called upon to deal with the injuries caused by fraud and deception. Across different states, different countries, indeed even different centuries, these three cases show how law has chosen to take such injuries as a serious challenge both to do justice between the parties and to prioritize the public good over the inequities of private order. The author argues that excavating the understandings that inform the legal repudiation of fraud and deceit is a timely and pressing project precisely because America appears, at this time, to be struggling under the burden of an increasingly pervasive tolerance for lies and deception in our private and public affairs. This apparent tolerance is evident in the contours of the Supreme Court’s First Amendment jurisprudence and further exacerbated by the pervasive circulation of what the philosopher Harry G Frankfurt has aptly called “bullshit” …

Plasencia, Madeleine M, No Right to Lie, Cheat or Steal: Public Good v. Private Order (May 14, 2014). University of Miami Law Review, Vol. 68:677, 2014.