Journal of Applied Philosophy – Special Issue: Benefiting from Injustice

€ – Articles first published online: 25 JUL 2014

The Normative Implications of Benefiting from Injustice – Bashshar Haydar and Gerhard Øverland

Benefiting from the Wrongdoing of Others – Robert E Goodin and Christian Barry

The Priority of Solidarity to Justice – Avery Kolers

Benefiting from Failures to Address Climate Change – Holly Lawford-Smith

‘A Doctrine Quite New and Altogether Untenable’: Defending the Beneficiary Pays Principle – Daniel Butt

Voluntary Benefits from Wrongdoing – Avia Pasternak

Andrea Perrone, ‘The Just Price Doctrine and Contemporary Contract Law: Some Introductory Remarks’

While issues of justice are at the center of the international scholarly debate on contracts, both black letter law and legal scholarship tend to disregard the doctrine of the just price as nothing more than a relic of the Middle Ages. In accordance with the approach adopted by the EU Directive on Unfair Terms in Consumer Contracts, the most recent model rules of European private law explicitly exclude price adequacy from the unfairness test provided by the provisions dealing with unfair contract terms. Similarly, in the United States, sec 79 of the Restatement (Second) of Contracts specifies that “if the requirement of consideration is met, there is no additional requirement of equivalence in the value exchanged”. Legal scholars substantiate this approach with various arguments … (more)

Andrea Perrone, ‘The Just Price Doctrine and Contemporary Contract Law: Some Introductory Remarks’. Orizzonti del Diritto Commerciale, numero 3 / 2013.

Jeffrey Lipshaw, ‘Cognition and Reason: Rethinking Kelsen in the Context of Contract and Business Law’

This is a reconsideration of Hans Kelsen’s Pure Theory of Law from the standpoint of a long-time business lawyer, contract theoretician, and Kant-influenced epistemologist. The essay (a) reconsiders the Pure Theory in the context of contract and business law (i) in light of how legal reasoning operates (something the Pure Theory accurately characterizes) in contract and business law (and perhaps more generally), and (ii) with a more faithful or more satisfying account than Kelsen provided of the kind of knowledge we obtain if we are going to think of contract and business law as a kind of science, whether descriptive or normative, under Kantian conceptions of cognition and reason; and (b) considers the practical and theoretical implications of the foregoing somewhat obscure and arcane distinction, if not for the contract and business lawyers who actually do the practicing, then at least for those who teach them. Facing reality before deciding on a course of action is often the hardest task for lawyers and their clients. I am thus skeptical of a legal “science” that seeks an ironically and paradoxically abstract positive law of contracts, an ideally coherent doctrine that exists somewhere “out there,” removed from its application to real world experience.

Lipshaw, Jeffrey M, Cognition and Reason: Rethinking Kelsen in the Context of Contract and Business Law (July 23, 2014). Suffolk University Law School Research Paper No 14-18.

Eric Zacks, ‘Contract Review: Cognitive Bias, Moral Hazard, and Situational Pressure’

This Article explores the contract drafting and review process of attorneys from a cognitive and social science perspective. Based on an understanding of the behavioral tendencies of individual attorneys as impacted by cognitive bias, moral hazard, and situational pressure, the drafting attorney may be able to secure particular transactional advantages for her client. For example, the anchoring effect, which suggests that individuals are affected by the presence by an initial value position, may explain why drafters should and do include extreme positions in their initial draft. Similarly, time pressure may affect an attorney’s review of a contract, which a drafting attorney can anticipate and exploit to her advantage by increasing contract length and complexity. The drafting attorney can also seek to take advantage of particular moral hazards that the reviewing attorney faces when representing clients, such as when the reviewing attorney is compensated on a per-transaction basis or would like to appease the client and avoid disrupting a transaction. Understanding the cognitive processes and situational influences helps explain or predict particular patterns of contracting behavior. These factors suggest significant limitations in the attorney as an effective tool in checking opportunistic behavior, both prior to and after contract formation, and undermine a positive model of the transactional attorney as a value-adding transaction cost engineer.

Zacks, Eric A, Contract Review: Cognitive Bias, Moral Hazard, and Situational Pressure (July 23, 2014). 9 Ohio State Entrepreneurial Business Law Journal, 2014, forthcoming.

John Kleefeld, ‘The Donoghue Diaries’

Donoghue v Stevenson is justly the most well-known legal case, at least in Commonwealth legal systems, and its fame rests largely on the judicial opinion of Lord Atkin in the case and his enunciation of the neighbour principle, which heralded the modern law of negligence. Among Donoghue devotees, it is well known that May Donoghue’s counsel cited only seven cases in written argument — in contrast to the roughly two dozen cited by Lord Atkin. So even without Atkin’s cryptic modesty (“I speak with little authority on this point, but my own research, such as it is …”), we can infer that he must have pursued his own research agenda. What has so far been an inference is now a certitude, with the startling discovery of a bundle of papers relating to the case. Written in a spidery and sometimes illegible hand and merely initialled “JRA” (that is, James Richard Atkin), they reveal Atkin’s research process, his innermost thoughts about the state of the law, his efforts to lobby his judicial colleagues, and his excitement as the judgment took shape. The Donoghue Diaries — transcribed by the author before being lost in a fire — are therefore a must read for legal historians, lawyers, jurisprudes and all aficionados of the legal imagination. Footnotes have been added for clarification or reference, and citations and other conventions have been updated where warranted.

Kleefeld, John C, The Donoghue Diaries (2013). Juridical Review, 3: 375-450 (2013).

Megan Carpenter, ‘Intellectual Property: A Human (Not Corporate) Right’

This chapter seeks to distinguish between intellectual property rights the existing legal mechanisms for intellectual property protection – and the right to intellectual property. The right to intellectual property is a human right. Intellectual property rights, instrumental in nature and codified in legal frameworks around the world, are not. Rather, intellectual property rights as they exist are both over- and under-inclusive in their protection of the right to intellectual property. However, the right to intellectual property exists for everyone, and a human rights perspective on IP should change the framework by which we evaluate and construct the legal system, expose the flaws of a system designed to primarily protect corporate interests, and present possibilities for a more inclusive approach.

The analysis begins in Part l with a discussion of the human right to the moral and material interests of creators, as that right has been embodied in an international human rights framework over time. In Part 2, I discuss intellectual property rights – their importance and relevance to the human rights detailed in Article l5(1)(c) of the International Covenant on Economic, Social, and Cultural Rights. Creations of the mind are not only fundamental to personhood and community, but they serve as a primary economic vehicle on the global stage and have the potential to facilitate the ability of creators to access an adequate standard of living in remote areas and disadvantaged communities. In Part 3, I discuss General Comment 17 of the CESCR, which gives guidance and effect to the human rights provisions found in Article 15(1)(c). I conclude that for the rights in Article 15(l)(c) to be realized, they must be perceived as a fundamental aspect of intellectual property law and policy. Protection and respect for the moral and material interests of creators, the right to intellectual property, is a human right; and as such, human rights discourse must inform intellectual property policy. This conclusion has implications both for the intellectual property law community and the human rights community: to forget that human creators are at the centre of scientific and artistic innovation works to the detriment of effective IP policy; to avoid the legal mechanism by which the rights of creators are protected works to the detriment of human rights.

Carpenter, Megan M, Intellectual Property: A Human (Not Corporate) Right (2012). The Challenge of Human Rights: Past, Present and Future 312 (David Keane & Yvonne McDermott eds, 2012).

David Erdos, ‘Fundamentally Off Balance: European Union Data Protection Law and Media Expression’

The European Data Protection Directive 95/46/EC requires all European Economic Area (EEA) jurisdictions to provide an equivalent regime protecting the privacy and other fundamental rights and freedoms of natural persons in relation to personal data processing, whilst also shielding media expression from the default substantive requirements as necessary to ensure a balance between fundamental rights. Through a comprehensive coding of the derogations set out in each jurisdiction’s data protection laws, this paper provides the first systematic analysis whether this has in fact been achieved. It is demonstrated that there is a total lack of even minimal harmonization in this area, with many laws providing for patently unbalanced results especially as regards the publication of sensitive information, including criminal convictions and political opinion, and the collection of information without notice direct from the data subject. This reality radically undermines European data protection’s twin purposes of ensuring the free flow of personal data and protecting fundamental rights, an outcome which remains unaddressed by the current proposed new Data Protection Regulation. Practical suggestions are made to ameliorate these troubling inconsistencies within the current process of reform.

Erdos, David, Fundamentally Off Balance: European Union Data Protection Law and Media Expression (July 25, 2014).

Michael Pratt, ‘Disclaimers of Contractual Liability and Voluntary Obligations’

Contractual obligations are traditionally regarded as voluntary. A voluntary obligation is one that can be acquired only if one intends to acquire it. This traditional understanding finds doctrinal expression in the requirement that contracting parties intend to create legal relations. It has, however, been doubted that the Anglo-Canadian law of contract insists on this requirement. Skeptics argue that cases ostensibly decided on the basis of such a requirement are better explained otherwise. In this paper I invoke the legal force of contractual disclaimers to show that contractual obligations are indeed voluntary. When parties to an agreement purport to exclude it from the reach of the law by expressly disavowing an intention to bind themselves legally, they have issued a disclaimer. An unambiguous disclaimer will preclude an agreement from being enforced as a contract. Contractual obligations are thus “disclaimer-sensitive”. I argue that this striking feature of contractual obligations can be plausibly explained only if contractual obligations are voluntary.

Pratt, Michael G., Disclaimers of Contractual Liability and Voluntary Obligations (July 23, 2014). Osgoode Hall Law Journal, 51(3), forthcoming; Osgoode Legal Studies Research Paper No 53/2014.

Stephen Waddams, ‘Mistake in Assumptions’

Mistake raises several important and difficult questions for contract law. The question addressed here is, when is it an excuse from contractual obligation that a contract has been made under the influence of a mistake of fact? Posed in this form, the question invites attention to aspects of contract law not usually considered in relation to each other, particularly misrepresentation, frustration, and more generally, unjust enrichment, all areas in which Professor McCamus has written extensively. This article brings these areas together with the object of throwing useful light on each of them, both from the point of view of understanding the legal past, and from the point of view of proposing appropriate rules for the future.

Waddams, Stephen Michael, Mistake in Assumptions (July 23, 2014). Osgoode Hall Law Journal, 51(3), forthcoming; Osgoode Legal Studies Research Paper No 52/2014.

Claire Mumme, ‘Property in Labour and the Limits of Contract’

As has long been recognized, the contract of employment depends on the commodification of labour power. Notwithstanding debates amongst political theorists and trade union activists about whether individuals should be viewed self-owners, and whether it is possible to sell one’s capabilities without selling one’s self, the law does treat labour power as a commodity. There has been little research on the ways in which the law does so, however, for the simple reason that self-ownership of one’s laboring capacities is often taken as fact, as the starting premise for analysis, and treated as a necessary pre-condition for individual self-realization through contract. Moreover, proprietary and contractual forms of regulating work are often presented as diametrically opposed: a proprietary method of labour regulation is said to create a relationship of slavery, while contract is presented as an institution of choice.

This paper argues that an analysis of labour power as property, and its relationship to contract, emphasizes that both contract and property are enmeshed in the legal regulation of waged employment. Examining the ways in which the courts have given shape to individual’s proprietary rights over their labour power, and have set the terms for its exchange, demonstrates that the limitations on employers rights of control are not inherent to the contractual form. Instead, they often depend on wider social processes, such as production and labour processes, collective bargaining, and statutory regulation. Examining proprietary rights over labour power provides another window onto the malleability of the contractual form, and the degree to which political choices are made by courts and legislators in determining the terms of the employment contract.

This paper therefore investigates the relationship between contract, and labour power as property. To do so the historical evolution of contractual limitations on employers’ rights of control will be canvassed, and the ways in which these limitations are now fraying. In particular, the development of the managerial prerogative from a property to a contract-based interest is described, and the ways in which concepts of working-time have operated, in theory, to separate in law the commodification of labour power from the commodification of self. Finally, the paper concludes by examining the ways in which these limiting mechanisms are beginning to disappear, as collective bargaining protections dissipate and the statutory protections are rolled back.

Mumme, Claire, Property in Labour and the Limits of Contract (July 14, 2014). Forthcoming in the Handbook on Political Economy and Law, U Mattei and J Haskell, eds. Edward Elgar Publishing.