Kate Reilly, ‘When Law and Culture Collide: The Uniform Application of European Private Law’

As a consequence of the current fragmented state of the consumer law acquis in the European Union, the European Commission has indicated its desire to move from away from the harmonisation effort that is achieved through directives towards the realisation of uniform law that can be provided by (optional) instruments. In this article, the cultural barriers to the uniform application of legal transfers within the European Union are considered. Through using Japan as a case study, this contribution constructs a method that can both predict and explain the process that a legal transfer undergoes during its transplantation into a foreign legal order. The constructed model employs an interdisciplinary approach by fusing anthropological and legal theory in order to explain the aforementioned process and has as its starting point the role that cultural obstacles play on the mind and actions of those actors who are in the position to ensure or preclude the correct application of a transplanted legal rule. The article concludes that education is the linchpin in determining behaviour and, consequently, which perspective of the three perspectives generate by the model shall be employed; be it enculturation of traditional cultural values or formal education received in schools, universities and working life. Subsequently it is argued that culture is only as powerful as the weight attributed to a concept within the mind of the actor, the deep structures of law and its link with culture are largely irrelevant; therefore, cleavages in the uniform application of Union law will only continue to transpire for as long as actors continue to perpetuate internalised biases.

Reilly, Kate O, When Law and Culture Collide: The Uniform Application of European Private Law (February 27, 2015). Maastricht European Private Law Institute Working Paper No 2015/3.

D Gordon Smith, ‘Contractually Adopted Fiduciary Duty’

The Delaware Supreme Court recently referred to ‘contractually adopted fiduciary duties’. Although some commentators, including Larry Ribstein, view fiduciary duties as a type of contract term, the notion of contractually adopted fiduciary duties is incoherent. The need to opt in to fiduciary duties would arise in only two circumstances: (1) fiduciary relationships that do not invoke fiduciary duties without contractual authorization, and (2) nonfiduciary relationships in which the parties wish to invoke fiduciary duties that would otherwise be absent. The first category of relationships does not exist, as courts impose fiduciary duties when the structure of a relationship indicates that fiduciary duties are justified, and the second category of cases is rare — and should be nonexistent — as independent contracting parties generally have no reason to opt in to the fiduciary regime because fiduciary duties simply do not make sense outside of fiduciary relationships.

Nevertheless, the issue arises occasionally in judicial opinions, and this Essay offers a simple proposal to clarify the line between fiduciary duties and contractual duties. When a duty arises from the language of a contract, that duty is a contractual duty, but if a duty arises as a matter of common law because the structure of the relationship comports with the description of fiduciary relationships, that duty is a fiduciary duty.

Smith, D Gordon, Contractually Adopted Fiduciary Duty (December 1, 2014). 2014 University of Illinois Law Review 1783.

Christopher Robinette, ‘Party Autonomy in Tort Theory and Reform’

Tort theory has been dominated by a debate between scholars who view tort law as rooted in individualized justice and scholars who argue tort law is an instrument of social policy. This dialogue has distracted scholars from the more important issue of how to properly separate cases worthy of individualized justice treatment from those better suited to routinized resolution. Tort law already contains both types. One potentially fruitful method of separation is to empower the parties themselves to make the decision. They could do so by voluntarily trading liability for the elimination or substantial reduction in non-economic damages. Such an approach honors individualized justice by leaving the parties in control of the case and, if used, would increase both compensation and administrative efficiency, arguably without a reduction in the deterrent effect. Although the purpose of this article is not to design the ideal proposal(s) to embody such an approach, Jeffrey O’Connell has given us several models to begin our deliberations. It is only the latest contribution in his impressive legacy.

Christopher J Robinette, Party Autonomy in Tort Theory and Reform. Journal of Tort Law, February 2015.

Jason Varuhas, ‘The Evolution of the Damages Remedy Under the New Zealand Bill of Rights Act 1990: From Torts to Administrative Law’

This paper charts the development of the damages remedy under the New Zealand Bill of Rights, from its inception in Baigent‘s Case, to one that looked as though it may develop along tort-based lines in the case of Dunlea, and more recently towards what might be described as an ‘administrative law’ or ‘public interest’ conception of the remedy, in the wake of the Supreme Court decision in Taunoa. This public interest conception is based in a particular view of the goals of public law, which more or less equates public law with administrative law i.e. the common law of judicial review. Within this conception public law is not principally concerned with individual rights and the protection of personal interests, but with ensuring public power is properly exercised for the good of society as a whole. The remedial approach within such conception of public law is, like that in administrative law, one focused upon declaratory and specific-type relief. Damages, being a remedy conceptualised traditionally as redressing setbacks to personal interests, is a conceptual outlier and therefore marginalised. The decision whether to award damages is guided principally by public interest concerns, with concerns of individual justice being pushed to the periphery and subordinated to wider concerns over how public power ought to be exercised. The result is an approach to damages far more restrictive than that which prevails in other fields of law which protect rights equivalent to or lesser in importance than those under the Bill of Rights.

The paper is critical of the administrative law approach. Most significantly, such approach confuses the distinctive nature of human rights law, producing incoherence within that field, and stymies the principal function of human rights law: protection of the individual. On the other hand, a tort-based approach, such as that mooted in the Court of Appeal decision in Dunlea, is consonant with and gives effect to the underlying concerns of human rights law. The paper argues that one of the principal reasons for the turn from tort to administrative law is that legal development has been rested on the deeply problematic idea of a grand normative distinction between public law and private law. The paper considers the use of this distinction to shape the damages jurisprudence.

Varuhas, Jason NE, The Evolution of the Damages Remedy Under the New Zealand Bill of Rights Act 1990: From Torts to Administrative Law (February 24, 2015).

Zemach and Ben-Zvi, ‘The Aesthetics of Contract Theory’

This Article offers a novel descriptive theory of contract scholarship that focuses on the aesthetics of various contract theories. Following Pierre Schlag, we explore aesthetics as pre-theoretical commitments that determine the form (but not the substance) of legal discourse. The Article explores four leading contract theories – promissory, reliance, economic and pluralistic conceptions of contract – and illustrates the manner each theories’ substantive insights are interwoven with aesthetics commitments, animating and giving the theories their unique character. The Article sheds new light on various contract theories and shows how the aesthetic point of view can better explain their specific strengths and weaknesses.

This inquiry also clarifies why decades of insightful theoretical work have failed to establish the supremacy of any contract theory. The Article’s main thesis in this respect is that the continuing struggle between different contract theories is isomorphous to the battle of aesthetics that rages in the legal community as a whole. Since there is no meta-aesthetic way to determine which aesthetic construction is correct – contract theories, which rely of different aesthetics, cannot produce conclusive evidence of their superiority.

Zemach, Efi and Ben-Zvi, Omri, The Aesthetics of Contract Theory (February 23, 2015).

Anna di Robilant, ‘Populist Property Law’

This article tells the story of the National Reformers’ Association and the National Farmers’ Alliance. These 19th century American movements represented the ‘little guys’ – workers and farmers – and used their folk legal imagination to develop new property forms that would solve their most pressing needs by improving access to key economic resources. Their stories are worth remembering for three reasons: First, they cast light on the phenomenon of popular law making, an aspect of the history of property law that legal historians have neglected. Second, they call into question the traditional narrative of the development of American property law by indicating that the transition away from feudalism and towards free alienability and efficient use was not as smooth as is typically thought. Third, these stories are particularly relevant today, as they help to make sense of aspects of contemporary property law that have developed in response to America’s rising inequality and increasing middle-class insecurity.

di Robilant, Anna, Populist Property Law (February 24, 2015). Boston Univ School of Law, Public Law Research Paper No 15-06.

Richard Hedlund, ‘The Theological Foundations of Equity’s Conscience’

This article explores the misunderstood and criticized concept of ‘conscience’ in English equity. The article will argue that equity’s conscience can be better understood through the lens of scholastic theology, based on the medieval link between the Chancery and the Church. The article will explore the scholastic conscience and the views of some of the key theologians, including St Bonaventure and St Thomas Aquinas. Thereafter, the article will link the scholastic conscience to Chancery, by exploring some judicial statements, from the Middle Ages and up to today. It is hoped that this article will clear up the many lingering misconceptions around equity’s conscience, which have been caused by a misunderstanding of the term conscience and the unfortunate lack of clear guidance from the courts.

Richard Hedlund, The Theological Foundations of Equity’s Conscience. Oxford Journal of Law and Religion (2015), doi: 10.1093/ojlr/rwu059. First published online: February 16, 2015.

Robin Kar, ‘Contract as Empowerment’

This Article offers a novel interpretation of contract law, which I call ‘Contract as Empowerment’. On this view, contract law is neither a mere mechanism to promote efficiency nor a mere reflection of any familiar moral norm — such as norms of promise keeping, property, or corrective justice. Contract law is instead a mechanism of empowerment: it empowers people to use legally enforceable promises as tools to influence other people’s actions and thereby meet a broad range of human needs and interests. It also empowers people in a special way, which reflects a moral ideal of equal respect for persons. This fact explains why contract law can produce genuine legal obligations and is not just a system of coercion.

The purpose of this Article is to introduce contract as empowerment and argue that it reflects the best general interpretation of contract. Contract as empowerment is an ‘interpretive’ theory in the sense that it is simultaneously descriptive, explaining what contract law is, and normative, explaining what contract law should be.

To support contract as empowerment’s interpretive credentials, I identify a core set of doctrines and puzzles that are particularly well suited to testing competing interpretations of contract. I argue that contract as empowerment is uniquely capable of harmonizing this entire constellation of doctrines while explaining the legally obligating force of contracts. Along the way, contract as empowerment offers (1) a more penetrating account of contractual remedies than exists in the current literature; (2) a more compelling account of the consideration requirement and its standard exceptions; and (3) a concrete framework to determine the appropriate role of certain doctrines — like unconscionability — that appear to limit freedom of contract. Contract as empowerment also explains the main differences between claims for breach of contract, promissory estoppel, restitution and quasi-contract. It explains key doctrines and answers key puzzles at each basic stage of contract analysis: formation, interpretation and construction, performance and breach, the standard defenses and the standard remedies.

The whole of this explanation is, moreover, greater than the sum of its parts. Because of its harmonizing power, contract as empowerment demonstrates how a broad range of seemingly incompatible surface values in modern contract law can work together — each serving its own distinctive but partial role — to serve a more fundamental principle distinctive to contract. These surface values include the values of fidelity, autonomy, liberty, efficiency, fairness, trust, reliance and assurance. Although many people think that contract law must involve trade offs between these values, contract as empowerment suggests that tensions between them are not always real. So long as the complex system of rules that governs contracts is fashioned in the right way, these doctrines can work together to serve a deeper and normatively satisfying principle distinctive to contract. This framework can therefore be used to guide legal reform and identify places where market regulation is warranted by the principles of contract in many different contexts of exchange — from those involving consumer goods to labor, finance, credit, landlord-tenant, home mortgages and many others.

There is a further implication of contract as empowerment. Contract as empowerment absorbs many economic insights but gives them a fundamentally different interpretation. It suggests that contracting and modern market activities are not simply spheres where self-interest runs wild. They are instead spheres of moral interaction, which can engage people’s natural sense of obligation and generate genuine legal obligations — at least so long as contract law is simultaneously personally empowering and reflective of a moral ideal of equal respect for persons. An important moral fabric has, in other words, been running through contract law and many forms of modern economic activity for some time now. This fabric has been obscured by classical economic interpretations but cannot be ignored in any true social science of the phenomena. Understanding this moral fabric can help people lead better and more integrated lives, as both moral and economic agents. We must, however, learn to strengthen this fabric and protect it from growing tear.

Kar, Robin Bradley, Contract as Empowerment (February 20, 2015).

May and Cooper, ‘Reaffirming the Foundations of IP Rights: Copyright and Patent in the Antebellum Era’

This paper is part of a series of papers exploring various facets of the constitutional foundations of intellectual property law. In American constitutionalism the Antebellum era is important not for staking out new principles, but for developing and applying those principles already established in the written Constitution. Generally considered the period from before the Civil War back to the War of 1812, the Antebellum era saw the furtherance and consolidation of the Founding era’s solicitude for protection of individual private property rights. Constitutionalism in the Antebellum era is particularly important for building upon the Constitution’s foundational concepts of copyright and patent. In the time between the War of 1812 and the Civil War, the importance of protecting intellectual property (IP) rights was widely perceived and appreciated. As a result, the Antebellum era was a period of advancement for the protection of IP rights.

By the early 1800s, protection of copyright and patent rights had become established concepts within the American constitutional order. Article I, Section 8 of the US Constitution included the IP Clause, empowering Congress to guarantee to authors and inventors the exclusive rights to the proceeds of their writings and inventions for limited periods. The First Congress enacted the Copyright and Patent Acts of 1790. Subsequent Congresses made minor amendments to the federal patent registration process and expanded copyright protection to historical prints, etchings, and engravings in 1793 and 1802, respectively. Authors and inventors began registering their writings and inventions under the new laws. And courts of law opened their doors to the first copyright and patent infringement lawsuits.

Over the next half-century, American constitutional concepts of copyright and patent protection were reinforced and expanded. Following in the thought paths of Founding era predecessors, prominent Antebellum era thinkers overwhelmingly regarded copyrights and patents in light of natural rights and property rights principles. According to this view, persons are by nature entitled to the fruits of their labor – that is, to their property. Government exists to safeguard individual rights to acquire, use, and transfer property according to just and equal laws.

May, Randolph J and Cooper, Seth L, Reaffirming the Foundations of IP Rights: Copyright and Patent in the Antebellum Era (November 20, 2014).