Conference: 14th Annual Conference on European Tort Law, Vienna, 9-11 April 2015

From April 9 to April 11, 2015, the Institute for European Tort Law (ETL) and the European Centre of Tort and Insurance Law (ECTIL) will host the 14th Annual Conference on European Tort Law in Vienna. The Conference will highlight the main developments in tort law in Europe in 2014 and allow discussion of their implications. On Thursday evening (April 9, 2015), the Conference will begin with an opening lecture entitled ‘Opting into Tort’ by Simon Whittaker (University of Oxford), followed by a reception hosted by the Austrian Federal Ministry of Justice. On Friday (April 10, 2015), scholars from EU Member States, plus Norway and Switzerland, will report on the latest developments in the field of tort law in their respective jurisdictions … (more)

[SLS, 23 October]

Dorfman and Jacob, ‘The Fault of Trespass’

The conventional wisdom has it that a property owner assumes virtually no responsibility for guiding others in fulfilling their duties not to trespass on the former’s property. In other words, the entire risk of making an unauthorized use of the property in question rests upon the duty-holders. This view is best captured by the keep-off picture of property, according to which the content of the duty in question is that of excluding oneself from a thing that is not one’s own. In this article, we argue that this view is mistaken. We advance conceptual, normative, and doctrinal arguments to show that this account runs afoul of the actual workings of the tort in question. A more precise account of trespass to land will reveal that the tort gives rise to a hybrid regime of tort liability, one which combines considerations of fault along with those of strict liability. On the proposed account, therefore, an owner does assume some responsibility for guiding others in fulfilling the duty they owe the former.

Avihay Dorfman and Assaf Jacob, THE FAULT OF TRESPASS. University of Toronto Law Journal, DOI 10.3138/utlj.2637. Online Date: Wednesday, October 22, 2014.

‘Tort Liability as Compensation’

Mark Geistfeld, Compensation as a Tort Norm, in Philosophical Foundations of the Law of Torts (John Oberdiek ed, 2014). For more than a decade, Mark Geistfeld has been developing an original and sophisticated theory of tort. Professor Geistfeld’s work has been characterized by a remarkable and admirable confluence of four characteristics. First, the work is attentive to, and respectful of, the fundamental commitments and nuances of tort doctrine and policy. Second, Professor Geistfeld’s writings display a deep knowledge of tort history and theory. Third, the work deploys a deeply sophisticated knowledge of economics but does so in language that is intelligible to those of us who are not legal economists. Fourth, the work is sensitive and responsive to the criticisms that legal philosophers have made of the economic analysis of torts. The result is an impressively original tort theory in the making. In Compensation as a Tort Norm, published in John Oberdiek, ed, Philosophical Foundations of the Law of Torts (Oxford, 2014) Professor Geistfeld both summarizes and extends his project … (more)

[Gregory Keating, JOTWELL, 22 October]

Public lectures: The Jurisprudence of Corrective Justice, by Professor Ernie Weinrib – Oxford, Tuesday 4 November to Wednesday 12 November 2014

The Clarendon Law Lecture Series 2014 in conjunction with Oxford University Press – ‘The Jurisprudence of Corrective Justice’. Speaker: Professor Ernie Weinrib. Venue: Oxford Law Faculty. There will be a series of three lectures given by Professor Ernie Weinrib which will be as follows: Lecture One – ‘Structure’ – Tuesday 4th November; Lecture Two – ‘Rights’ – Thursday 6th November; Lecture Three – ‘Causal uncertainty’ – Tuesday 11th November. All lectures will take place at 5pm in The Gulbenkian Lecture Theatre, Faculty of Law, St Cross Building (more).

[Oxford Law Faculty]

Eliza Karolina Mik, ‘Subject to Review? Consideration, Liquidated Damages and the Penalty Jurisdiction’

The paper examines the relationship between what seem to be basic principles in contract law: “consideration need not be adequate” and “the rule against penalties applies only to sums payable on breach”. The ‘reluctant inspiration’ lies in the recent Australian case of Andrews v. Australia and New Zealand Banking Group Ltd, which establishes that the absence of breach or an obligation to avoid the occurrence of an event upon which a sum becomes payable, does not render such sum incapable of being characterized as a penalty. This decision constitutes an unexpected divergence from the position in most other common law jurisdictions. What are its practical implications? Should we even engage in historical arguments given that the penalty jurisdiction evolved at the time where the law did not recognize enforceable promises to perform? The paper commences with broad observations regarding the enforceability of liquidated damages clauses, the increasingly commercial approach to evaluating whether a pre-estimate of loss is “genuine” and the necessity to treat sums payable on breach as part of the commercial bargain. The more liberal the attitude with regards to the amount (ie the higher the sum that can be stipulated), the more limited the effect of the rule against penalties. A liberal approach does not affect the contract breaker’s ability to invoke the rule but his ability to succeed. In combination with the description of the performance, the price and the limitation of liability (if any), sums payable on breach often point towards a transaction-specific risk allocation. In many instances such sums come dangerously close to primary obligations. And courts do not, as a matter of principle, review primary obligations. Once this is acknowledged, it becomes even more difficult to justify any attempts to expand the scope of the penalty jurisdiction beyond payments triggered by breach.

After confronting some of the historical arguments made by the court in Andrews, the paper analyzes the recurring attempts to extend judicial review of contractual payments by creating “hybrid stipulations” – sums that are neither payable on breach nor in return for contractual performance. A difficult theoretical exercise awaits: should we create artificial divisions between contractual payments to establish whether they can be reviewed? Or should we finally acknowledge that all sums payable under a contract are part of the commercial bargain? On one hand, doctrinal integrity may point towards the need to vigorously defend the present form of the rule against penalties, including its (seemingly) strict limitation to sums payable on breach. On the other, some arguments made in Andrews and in other recent cases highlight the theoretical inconsistencies of its current formulation. After all, the “breach/no breach” dichotomy can also be regarded as a device for avoiding judicial scrutiny. At present, on the basis of Andrews alone it appears incorrect to use an institution that prohibits deterrence from breach to review the commercial substance of contracts. The rule against penalties reflects the general equitable principle not to enforce oppressive or unconscionable transactions. It does not reform commercially imprudent transactions. Given its exceptional nature, the penalty jurisdiction should be exercised sparingly – even with regards to sums payable on breach. Once sums payable on breach are regarded as part of commercial bargain, it is more difficult to subject them to review. If, however, payment is unrelated to the breach of a contractual promise, it comes dangerously close to being a contractual promise. Any review seems unacceptable.

Mik, Eliza Karolina, Subject to Review? Consideration, Liquidated Damages and the Penalty Jurisdiction (July 14, 2014).

James Dawson, ‘Contract After Concepcion: Some Lessons from the State Courts’

This Comment discusses the state courts’ response to AT&T Mobility LLC v Concepcion. In that case, the United States Supreme Court held that the Federal Arbitration Act preempts the use of unconscionability doctrine to invalidate arbitration clauses that foreclose classwide remedies. Part I of this Comment catalogues recent state-court approaches to forced-arbitration clauses, focusing in particular on four arguments: (1) Concepcion bars the use of unconscionability doctrine only when the application of that doctrine would interfere with the “fundamental attributes of arbitration”; (2) Concepcion applies to categorical but not case-by-case unconscionability analysis; (3) Concepcion does not prevent state courts from interrogating the conscionability of the formation of the entire contract; and (4) “arbitration” might be defined narrowly so as to limit the scope of FAA preemption. Building on these theories, Part II suggests a more ambitious avenue for innovation within the space left open by Concepcion. By applying duress doctrine to certain contracts containing forced-arbitration clauses, judges may be able to protect lay claimants while still remaining faithful to Supreme Court precedent.

Dawson, James, Contract After Concepcion: Some Lessons from the State Courts (October 17, 2014). Yale Law Journal, Vol 124, No 1, 2014.

Herbert Hovenkamp, ‘Progressive Legal Thought’

A widely accepted model of American legal history is that “classical” legal thought, which dominated much of the nineteenth century, was displaced by “progressive” legal thought, which survived through the New Deal and in some form to this day. Within its domain, this was a revolution nearly on a par with Copernicus or Newton. This paradigm has been adopted by both progressive liberals who defend this revolution and by classical liberals who lament it.

We generally identify classical legal thought with efforts to systematize legal rules along lines that had become familiar in the natural sciences. This methodology involved not only simplification and arrangement, but also “formalism”, in the sense that it presented the law as a complete system. At the risk of some caricature, the “data” of this system were legal decisions – a model that reflected not only the penchant for classification but also devotion to the idea that law is essentially judge made and that it evolves over long historical development. Historicism became an important attribute of legal classicism. The authors held up as exemplars are people like Gilded Age Harvard Law Dean Christopher Columbus Langdell and Francis Wharton, the Episcopal priest and prolific legal writer who produced commentaries on many legal subjects. While classical legal thought was generally anti-statist on economic matters, it was not libertarian. In fact, it advocated heavy state regulation of morals even as it supported liberty of contract without state interference as a general matter. The anti-legislative bias of legal classicism readily accommodated doctrines such as economic Substantive Due Process, which originated mainly in the state courts and was an important part of Supreme Court doctrine during the first four decades of the twentieth century.

The classical-to-progressive model of historical explanation is far too narrow to account for the profound changes in American law that occurred during the decades straddling 1900. These changes were embraced by a wide spectrum of jurists and legal thinkers, not merely by the subgroup that styled themselves “progressive”. Classical legal thought would have collapsed even if progressives had never showed up.

This historical model persists, however, mainly because it serves the interests of both the defenders and opponents of the institutions we have come to associate with progressive legal thought – namely, the welfare state, increasing public involvement in economic development, the rise of regulatory agencies with broad quasi-judicial and quasi-legislative powers, deferential judicial review of economic legislation, and aggressive judicial review of government actions injuring underrepresented minorities.

Hovenkamp, Herbert J, Progressive Legal Thought (October 20, 2014).

Maria Linda Ontiveros, ‘The Fundamental Nature of Title VII’

This article explores the fundamental nature of Title VII and argues that Title VII is a statute designed to protect the right to own and use one’s own labor free from discrimination in order to provide meaningful economic opportunity and participation. This conclusion is based upon three different types of analysis: the elements approach; the super statute approach and the human rights approach. The “elements approach” places Title VII in context and argues that it cannot be interpreted in isolation because it is only one element of the Civil Rights Act of 1964. The “super statute approach” argues that Title VII embodies the fundamental principle, originally found in the Thirteenth Amendment to the US Constitution, that individuals have the right to own and use their own labor free of discrimination, in order to have meaningful economic opportunity. This conclusion is supported by a historical analysis which ties together the Fair Employment Practices Commission (which served as the direct predecessor to Title VII); the work of the Civil Rights Section of Roosevelt’s Justice Department; and the Thirteenth Amendment and Anti-Peonage Act jurisprudence to show the connection between Title VII and the principles underlying the Thirteenth Amendment. The “human rights approach” shows that international law also categorizes and interprets employment nondiscrimination provisions in this way. The article uses this analysis to explain why the US Supreme Court’s recent moves to categorize and interpret Title VII as a tort are incorrect. Finally, it suggests that, if tort analysis were to be imported into Title VII, the doctrine of duty could be used to argue that Title VII creates an affirmative duty for employers to provide a workplace where all employees have a right to meaningful economic opportunity.

Ontiveros, Maria Linda, The Fundamental Nature of Title VII (October 16, 2014). Ohio State Law Journal, Vol 76, 2014.

Robyn Carroll, ‘When “Sorry” is the Hardest Word to Say, How Might Apology Legislation Assist?’

Apology legislation refers generally to statutory provisions that remove legal disincentives to offering an apology in the context of civil disputes. The legislation clarifies and, in many cases, alters what would otherwise be the legal consequences of an apology, principally by reforming the law of evidence. The aim of apology legislation, in general terms, is to encourage apologies by removing legal disincentives to apologising. Other aims are to promote the settlement and resolution of disputes and to reduce litigation. Apology legislation has been enacted in many US states, each state and territory in Australia, in England and Wales, in most Canadian provinces and territories and has been considered in Scotland. As apology legislation is being considered by the Department of Justice, Hong Kong Special Administrative Region Government this article, which suggests a number of matters that need to be considered when introducing apology legislation to assist in the resolution of legal disputes, is timely.

Carroll, Robyn, When ‘Sorry’ is the Hardest Word to Say, How Might Apology Legislation Assist? (2014). (2014) 44(2) Hong Kong Law Journal 491; UWA Faculty of Law Research Paper 2014-43.

Martin Redish, ‘Rethinking the Theory of the Class Action: The Risks and Rewards of Capitalistic Socialism in the Litigation Process’

Despite all of the controversial scholarship that has been published in recent years concerning the modern class action, it is both puzzling and disappointing how little of it has sought to grasp the deep structural precepts underlying the device. All too often, the scholarly debate, not to mention the political debate, has broken down along ideological lines: the political left has reflexively favored the device and the political right has reflexively opposed it. However, virtually all of even the serious scholarly work done on the subject has, for the most part, been superficial, failing to pursue, much less to grasp, the practice’s underlying foundational purposes. The purpose of this Article is to seek to understand those foundational purposes. The Article argues that the DNA of the modern class action fundamentally differs from that of the traditional one-on-one litigation process. The relationship between class attorney and class member, for example, is significantly different from the normal relationship between attorney and client. Recognition of these foundational differences should force us to recognize that the attorney-client relationship in the class action context is more like a guardian-ward relationship than a traditional relationship between client and attorney.

This insight does not necessarily mean that the class action is inherently improper. Indeed, in some ways recognition of the guardian model of the modern class action underscores the procedure’s value. But it also underscores the need to recognize the inherently capitalistic nature of that guardian relationship. Where profit incentives for the attorney are in accord with the interests of the class members, the practice should work well. However, all too often, modern class action procedure is plagued by externalities and perverse economic incentives, allowing class attorneys to profit even when class members will benefit virtually not at all. The goal of class action doctrine and rulemaking, then, should be to remove those economic perversions to insure that the capitalistic nature of the process functions effectively.

Redish, Martin H, Rethinking the Theory of the Class Action: The Risks and Rewards of Capitalistic Socialism in the Litigation Process (October 16, 2014). Emory Law Journal, forthcoming; Northwestern Law and Econ Research Paper No 14-20; Northwestern Public Law Research Paper No 14-52.