Call For Papers: Obligations IX, Melbourne Law School, 17–20 July 2018

“Obligations IX will address the theme Form and Substance in the Law of Obligations. Form and substance are distinguished in various ways and for various purposes in the law of obligations. A distinction is sometimes drawn between the form of a legal instrument, transaction or relationship and its intended or actual legal effect. For other purposes, a distinction is drawn between the form of a doctrine (eg, legal or equitable, element of a cause of action or defence) and its substantive effect. The main focus of Obligations IX, however, is on the relationship between form and substance in the sense of rules and reasons …” (more)

Banerjee, Bose and Rath, ‘Explaining the Effect of Financial Development on the Quality of Property Rights’

Recent empirical evidence suggests that financial development can catalyze property rights reforms, and for such effect to materialize financial development must cross a threshold. This paper offers a theory of financial markets to explain both stylized facts defining the relationship. The explanation is based on a simple trade-off between the costs and the benefits of securing property. Securing the right to property at a cost allows agents to post collateral against loans. However, the benefits of collateral vary according to the existing credit market conditions. We include this information in the trade-off between the costs and the benefits of securing property rights along the path of financial development to explain the conditions under which financial development can create incentives for better property rights institutions.

Banerjee, Chandramouli and Bose, Niloy and Rath, Chitralekha, Explaining the Effect of Financial Development on the Quality of Property Rights (March 6, 2016).

Heather Whitney, ‘The Autonomy Defense of Private Discrimination’

While a number of concerns have been raised about the on-demand economy, evidence of discrimination has been especially noted and publically condemned. Airbnb, for instance, came under fire when a Harvard Business School study showed that property owners were less likely to accept those with black-sounding names as renters and non-black hosts were able to charge approximately 12% more than black hosts. Similarly, in an October 2016 working paper conducted by the National Bureau of Economic Research, researchers looking at taxi-services Uber and Lyft showed that the cancellation rate for those with black-sounding names was more than twice as high as for those with white-sounding names. At the same time, largely in other parts of the country, many condemn not discrimination but the antidiscrimination laws designed to curb it, especially laws aimed at shielding those within the LGBTQ community from discrimination. Debates about discriminatory immigration policies dominate national headlines. 70% of the country is aware of the Black Lives Matter movement. We are, in short, in the midst of an important conversation about discrimination, the likes of which we have not seen since the Civil Rights Movement. Legal theorists and philosophers have taken note, arguing for changes to our current antidiscrimination law regime. But while these theorists have disagreed about the proper scope of antidiscrimination law, they have widely agreed in one crucial respect: namely, that any expansion of antidiscrimination law beyond their preferred scope is problematic on autonomy grounds …

Whitney, Heather M, The Autonomy Defense of Private Discrimination (February 22, 2017).

Dyson, Goudkamp and Wilmot-Smith, ‘Thinking in Terms of Contract Defences’

The overarching aim of this chapter is to explore the reluctance of contract lawyers to think in terms of defences. The apparent opposition to terminology that is ubiquitous elsewhere in private law is, at least at first glance, a puzzling feature of contract law scholarship that merits attention. The analysis is in three parts. In Section II, we ask whether contract law has defences. We argue that, on three popular definitions of that term, there are defences to contract claims. This, combined with three further matters, which we canvass in Section III, explains what, specifically, is prima facie puzzling about the fact that contract lawyers do not think in terms of defences. Finally, in Section IV we address whether contract lawyers ought to speak in terms of defences. As a prelude to this analysis, we isolate a range of related questions that can be asked about defences. Considerable confusion, we believe, has flowed from a failure on the part of many theorists to be clear about the questions that they are asking. Having explained the question with which we are concerned, we offer reasons for and against using the language of defences in the contractual context.

Dyson, Andrew D and Goudkamp, James and Wilmot-Smith, Frederick, Thinking in Terms of Contract Defences (February 22, 2017).

‘Whiplash injuries: a tale of two systems’

“In October 2013 the government published its response to a ‘Consultation on arrangements concerning whiplash injuries …’ In the document the then Secretary of State, Chris Grayling, estimated £1.5 to £2bn of savings for the insurance industry that could come from his reforms. He said that insurers had made a commitment at a summit in February 2012 to pass on savings to consumers. According to the Association of British Insurers average motor insurance premiums did decrease from 2012 to 2014 …” (more)

[piBlawg, 25 February]

Bryant Smith, ‘Automated Driving and Product Liability’

This Article focuses on one cyberphysical domain – automated driving – to methodically analyze the so-called liability problem. It considers how automated driving could affect product liability, how product liability could affect automated driving, and how each could advance or impede the prevention of injury and the compensation of victims.

Smith, Bryant Walker, Automated Driving and Product Liability (October 1, 2016). Michigan State Law Review, forthcoming.

James Henderson, ‘Learned Hand’s Paradox: An Essay on Custom in Negligence Law’

In a well-known tort decision, Judge Learned Hand observes that while legal standards almost always coincide with customary industry standards, strictly speaking custom never controls. This Essay examines the implications of this apparent paradox, concluding that courts must have final say in order to prevent doctrinal feedback loops – situations in which legal doctrine influences customary behavior which, in turn, influences doctrine, which in turn influences custom, and so on. Were feedback loops allowed to develop unchecked by judicial review and intervention, they would lead to unfair and inefficient overinvestments or underinvestments in care. The Essay describes the approach courts should adopt in determining whether, in given instances, these feedback loops present a problem.

James A Henderson, Jr, Learned Hand’s Paradox: An Essay on Custom in Negligence Law, California Law Review, vol 105:165 (2017).

Enrico Baffi, ‘Consumer Protection Against Unconscionable Clauses: American Doctrines, Italian Law’

Conventional wisdom holds that with the laws protecting consumers against unconscionable provisions in their contractual relationships with professionals, the European Legislator intended to level the playing field between parties to a contract. This article intends to show that the European Legislator’s intent was actually to resolve the problem of an inefficient ‘race to the bottom’, based on the fact that consumers do not read every clause in a contract. Rather, consumers tend to pay attention to only a few, and companies take advantage of that lack of attention by including unconscionable clauses, and consequently offering the goods at a lower price. The final result: unconscionable clauses and low prices. Among the solutions proposed in American case law, the theory of ‘reasonable expectations’ (under which the clause that the consumer would have reasonably anticipated is substituted for the original, provided that reasonable expectations can change once sufficient information is obtained), the theory known as ‘penalty default rules’, (regulatory provisions that introduce penalty default rules for the professional, who would therefore choose to insert a new clause, thereby properly informing the consumer) and the theory of ‘efficient clauses’ (identifying the criterion of assessing how to maintain clauses that maximize the benefits for the parties), are the most common and do not hold that unconscionable clauses are a consequence of different bargaining power between parties.

Baffi, Enrico, Consumer Protection Against Unconscionable Clauses: American Doctines, Italian Law (February 23, 2017).

Liam O’Melinn, ‘The Ghost of Millar v Taylor: The Mythical Origins of Copyright’

The Ghost of Millar v Taylor walks abroad once more, relishing the prospect of ‘the next great copyright act’ and tempting us to ask again whether the origins of copyright are to be found in the common law. Despite being answered time and again in the negative, this question preys upon modern sensibilities predisposed to the view that artists who painted on the walls of ancient caves had a primordial right to prevent ‘pirates’ from copying their works. The belief that the common law has always provided creators with a right against unauthorized reproduction is quietly but increasingly influential, and it has helped to propel copyright law toward limitless expansion. According to the common law view this right antedates any positive enactments made on its behalf, and the earliest copyright statutes simply secured or augmented rights already in existence. This theory has served as the basis of an increasing tendency toward the retrospective creation of property in nearly any ‘subject matter’ — as copyright theory describes cultural exchange — that is perceived to be of potential value. The common law view has made its influence felt in a distension of culture, a distortion of the law, and a tendency to create a boundless form of property.

There can be no question that Millar‘s Ghost, if it ever departed, has returned. Three cases recently or currently before the Supreme Court — Star Athletica v Varsity Brands, Lee v Tam, and Apple v Samsung — involve the influence of the common law view in a variety of ways. In a more general sense, the public domain is embattled. Finally, there is widespread intrusion into longstanding cultural practices and traditional rights, in the quest for corporate ownership. Most amusingly, or alarmingly, manufacturers (including Apple) are mounting an assault on the right of consumers to repair their own devices. All of these issues reflect a desire to reshape culture in accord with the norms of copyright law, and to create rights of property where before there were none.

This property is justified by the recursive insertion of an author or creator whose original right provides the ostensible basis of current title. In American law this approach has rested on three propositions: That authors in England always had a right to prevent unauthorized publication of their writings, that Americans carried this right with them from England to their new colonies in the seventeenth and eighteenth centuries, and that as between the two landmark decisions in English copyright law, Millar v Taylor and Donaldson v Beckett, Americans chose the view taken in Millar that copyright was a perpetual right originating in the common law. This final claim is bolstered by the belief that Americans knew the result in Millar but not in Donaldson, and that when they began to pass their own copyright statutes they were passing the familiar common law result into law. This article focuses on these claims, arguing that there was no common law copyright before the passage of the Statute of Anne, and no norm prohibiting unauthorized publication. It would be closer to the mark to say that unauthorized publication was the norm, and that our timeless right of first publication is actually a much more modern creature than we have imagined. Americans had no common law inheritance to carry with them to the colonies, and they actually did know the result in Donaldson shortly after it was decided, leaving no reason to believe that American copyright law followed the Millar decision. The article concludes with a consideration of the modern implications of the success of the myth of common law copyright. These include a distortion of culture to make it fit the contours of copyright law, the increased dedication of the law to the protection of a species of property that knows no bounds, and the imposition what I term the ‘copyright servitude’, which protects the interests of copyright holders by limiting the uses that can be made even of lawfully-purchased products, and by impeding the development of alternative means of transmission of information.

O’Melinn, Liam, The Ghost of Millar v. Taylor: The Mythical Origins of Copyright (February 24, 2017).

Wian Erlank, ‘Property Rights in Space: Moving the Goal Posts So the Players Don’t Notice’

Elsewhere in ‘Rethinking Terra Nullius and Property in Space’, I have argued that due to the changing circumstances of access to space by private entities rather than governments, the current legal situation with regard to ownership in space should be reconsidered. As it stands, ownership in space is governed by international law and currently private and even national ownership of celestial bodies is prohibited.

While (controversially) arguing for the recognition of private ownership in space, I constantly have to field questions surrounding the pragmatic assertion that since international law and United Nations treaties and conventions prohibit ownership in space, there can be no development that will allow for this. Hence, while not abandoning my purely property law-oriented arguments for recognising private ownership in and on celestial bodies, I will maintain my arguments for property rights in space and analyse a number of differing options available to private entities who would like to acquire property rights in space. As such, I purposefully avoid the maligned terminology of ‘ownership’, and rather look at various other options that still give the intrepid celestial entrepreneur some sort of property right, or even a property-like protection of their interests in space. Some examples include concessions, mining licences, prospecting rights, and certain contractual rights that could benefit from property-like protection.

The thesis is that even if ownership of celestial objects is not accepted due to the existence of various problematic dogmatic viewpoints, one would still be able to achieve much the same effect by using other property mechanisms.

Erlank, Wian, Property Rights in Space: Moving the Goal Posts So the Players Don’t Notice (November 16, 2016). Potchefstroom Electronic Law Journal, Vol 19, 2016.