‘A consumer’s preference for invalidity? AG Pitruzzella on the consequences of unfairness under the UCTD’

“Last week, AG Pitruzzella submitted an interesting Opinion on unfair terms in case C-260/198 (Dziubak) (the English version of this opinion is not yet available). This case concerns a foreign currency-indexed loan undertaken by Polish consumers. The consumers claimed that the term establishing the conversion rate was unfair because it essentially allowed the bank to unilaterally determine the conversion rate. The competent Polish court agreed with the claim, raising the problem of what should happen to the contract given that the conversion mechanism determined the main interest rate. Should it be declared invalid? There are two layers to this question …” (more)

[Recent developments in European Consumer Law, 22 May]

‘Sarah Wasserman Rajec on The Property Law Misfit in Patent Law

“In this episode, Sarah Wasserman Rajec, Associate Professor of Law at the College of William and Mary Marshall-Wythe School of Law, discusses her new article The Property Law Misfit in Patent Law. She argues that in various circumstances, the animating principles of patent law are best served by departing from otherwise frequent reliance on property law analogies. In her article, Professor Rajec engages with a growing literature that revisits patent law’s place within property law. Using recent Supreme Court patent decisions that range in subject matter from remedies to commercial law to administrative adjudication, she concludes that property law is a useful starting point in patent law questions, but that the eventual answers often lie elsewhere …” (podcast)

[Ipse Dixit, Season 1, Episode 245, 21 May]

‘High Court considers causation in clinical negligence’

Pomphrey v Secretary of State for Health and Anor [2019] 4 WLUK 483 – decision not yet on Bailii but available on Lawtel. This case concerned an alleged failure to diagnose compression of nerve roots leading to cauda equina and alleged delay in operating urgently. It raises an important issue in relation to causation and the applicability of the famous decision of Chester v Afshar [2004] UKHL 41. The Claimant advanced a range of arguments on breach of duty against a number of individuals in respect of a failure to refer for earlier surgery for symptoms of early onset cauda equina, all of which failed having regard to a careful analysis of the factual and expert evidence … (more)

[Jeremy Hyam, UK Human Rights Blog, 22 May]

Horton and Weisbord, ‘Boilerplate No Contest Clauses’

… This Article builds on this foundation by reviewing no contest clauses in 457 wills that were probated in Alameda County, California in the late 2000s. We show that testators and their lawyers overuse no contest provisions. Indeed, these terms appear in nearly 70% of the wills in our sample, including many estates in which there is no realistic possibility of discord. Thus, we conclude that some no contest provisions are intent-thwarting boilerplate. We then offer evidence that sticky default rules can help combat this problem …

Horton, David and Weisbord, Reid K, Boilerplate No Contest Clauses (May 9, 2019). 83 Law and Contemporary Problems (forthcoming 2020).

Geoffrey Vos, ‘The Future for the UK’s jurisdiction and English law after Brexit’

“… There are two preliminaries to any consideration of a choice of law and jurisdiction. The first is to understand that law and legal systems are by their very nature local and parochial. There are more than 200 legal systems in the world, and they are almost all operated in the local language of the country in question, by judges who generally only speak that language, and they have developed to serve the needs and interests of the local population. It is essentially unusual to have a legal system that serves the needs, let alone the interests, of international business parties …” (more)

Sir Geoffrey Vos, the Chancellor of the High Court of England, and Wales, ‘The Future for the UK’s jurisdiction and English law after Brexit’, 13 May 2019. Presentation to a Seminar in Munich hosted by Münchener Juristische Gesellschaft, and the British Chamber of Commerce in Germany Justizpalast, München.

Daniel Del Gobbo, ‘Queer Dispute Resolution’

In Anglo-American legal discourse, the juridical subject of dispute resolution has traditionally been conceived as a bearer of rights or a bearer of interests: rights, in the model of liberal legalism that regards adjudication (ie court and tribunal processes) to be the preferred means of resolving disputes in the adversarial tradition; or interests, in an alternative or complementary model that regards consensual dispute resolution (ie negotiated and mediated settlement processes) to be the preferred means of resolving disputes in the non-adversarial tradition. This article explores the ethical implications of reframing the bearer of interests as a bearer of desires. This is more than just semantics …

Del Gobbo, Daniel, Queer Dispute Resolution (2019). (2019) 20 Cardozo Journal of Conflict Resolution 283.

Raymond Brescia, ‘On Tipping Points and Nudges: Review of Cass Sunstein’s How Change Happens

In How Change Happens, Cass Sunstein explores the mechanisms through which social change can occur, the triggers that can cause it, and the pitfalls along the road to change. For Sunstein, small influences, which arise through what he has called ‘nudges’, can have large impacts, particularly where they indicate that support for existing norms has fallen. When this occurs, it can reveal hidden preferences that might have existed all along, but individuals were discouraged from making them public because of the existence of those norms. Once support for an existing norm begins to disappear, it can create a tipping point and then a ‘norm cascade’: when support for a new norm takes hold securely in society. In recent years, several works have appeared that have attempted to explain the sources of social change by looking at examples of successful campaigns and trying to divine the sources of such successes. Sunstein offers a different perspective. He provides more of a theoretical view on the sources of social change, not just identifying the levers that can bring it about but also some guidance on how to utilize them. It is a welcome addition to the scholarship on social change and stands as an elegant and insightful complement to some of the other, recent and more inductive scholarship on the subject. As a way to test Sunstein’s theory of social change, this review asks whether that theory can help explain recent developments, namely, the victory of the marriage equality campaign and the rise of a new and emboldened white nationalism in the wake of the election of Donald Trump to the US presidency. As a review of these phenomena shows, Sunstein’s theory of change helps to provide insights into how such change came about, but, it also raises more questions. Indeed, questions still linger, like when is a nudge enough, can we identify what will make something ‘tip’? Nevertheless, Sunstein offers deep insights into the inner workings of social change and how norm entrepreneurs can understand not just how change happens but also how to bring it about.

Brescia, Raymond H, On Tipping Points and Nudges: Review of Cass Sunstein’s How Change Happens (May 16, 2019). Notre Dame Journal of Law, Ethics and Public Policy, forthcoming.

‘First Meeting of the Young Private International Law Research Network’

“On 5 April 2019, the first meeting of the newly established research network ‘Young Private International Law in Europe’ took place at the University of Würzburg, Germany. The network intends to create a Europe-wide exchange at ‘junior faculty’ level (predoc/postdoc) in the context of various comparative Private International Law (PIL) projects …” (more)

[Maximilian Schulze, Conflict of Laws .net, 21 May]

Mark Lunney, ‘Innovation in the shadows of deference: Urban environment and the law of tort in Australia, 1901-1945’

Australian private law in the first half of the twentieth century has generally been portrayed as lacking innovation, its main characteristic being fidelity to rules of English law. Although this view is largely accurate, detailed granular studies of Australian case law and legislative developments of the period reveal a more complex picture than the traditional categorisation. Drawing on a conception of Australian nationalism from Hancock’s ‘independent Australian Britons’, this article evaluates afresh the contribution of Australian judges to innovation and creativity through an analysis of tort cases involving urban environments from this period. Application of the relatively abstract legal rules to concrete situations, as well as the need to answer questions not previously considered in England, allowed Australian judges considerable latitude to contribute to both the shape of the communities they inhabited and the common law they viewed as their own.

Mark Lunney, Innovation in the shadows of deference: Urban environment and the law of tort in Australia, 1901-1945, Law and History Volume 6 Issue 1 (Apr 2019).

E Lees, ‘Property In The Anthropocene’

Intergenerational justice, community interests, and environmental protection are all goals sought through the imposition of the duties of stewardship onto owners of land. But such duties, when imposed by law, require justification beyond the morality of maintaining and preserving land in a good condition for its present and future use. The potential for sanction imposed by the state means that stewardship duties, if they are to be justified, must be grounded in established principles of justified legal intervention. Of those, the most convincing is, and always has been, the harm principle: intervention is justified where a rule prevents one person from harming another. This test is a challenge for duties of stewardship, where the focus is on preserving one’s own land for the benefit of future generations; who is harmed by a failure to comply? This Article explains that the harm in such a breach of duty lies in the erosion of the collective interest which cements the community of land owners and users, a collective to which the relevant owner of land herself belongs. The community is justified in imposing sanction for breach of that rule, not because of any environmental damage per se, but in order to ensure the continued and ongoing existence of the group. In this way, stewardship should be seen not as a rule arising from environmental ethics, but as a coordination rule, justified by the role it plays in maintaining the collective, and as such, stewardship thus inheres in private property. The two are not dichotomous, but inextricable.

E Lees, Property In The Anthropocene, 43 William and Mary Environmental Law and Policy Review 541 (2019).