Call for Papers: Modern Studies in Property Law 2018: University College London, 10-12 April 2018

The 12th Biennial MSPL Conference will be held at the newly refurbished Bentham House, home of the UCL Faculty of Laws, from Tuesday 10th April to Thursday 12th April 2018. A dedicated Post-Graduate Research strand will be held on Thursday 12th April: further details and a call for papers for this strand will be released in September 2017. We are delighted to announce that the MSPL keynote address will be delivered by Lady Justice Gloster on Wednesday April 11th, and will be followed by a drinks reception and conference dinner … (more)

‘Studying Specific Performance’

Yonathan A Arbel, Contract Remedies in Action: Specific Performance, 118 West Virginia Law Review 100 (2015), available at SSRN. Parties that have a right to the very thing promised in a contract may opt not to have it delivered by the breaching party through specific performance. Even when the promised item is unique, the plaintiff may choose not to enforce the remedy. Why? Is it too difficult to execute the remedy? Are motivations mixed? Do lawyers advise clients to pursue money damages over specific performance? Will the breaching party behave in good faith when complying with the order? Professor Yonathan Arbel, former managing editor of the New Private Law Blog, offers a fascinating qualitative study of this underexamined issue … (more)

[Caprice Roberts, JOTWELL, 25 May]

Rothstein and Rothstein, ‘The Use of Genetic Information in Real Property Transactions’

With the cost of genome sequencing continuing to decline and genomic information becoming more common in health records, it is foreseeable that entities with an economic interest in the future health status of individuals will be tempted to use predictive genetic information to assess the health risks of individuals who are parties to real property transactions. Thus, mortgage lenders, mortgage insurers, real estate sellers, senior living centers, retirement communities, and other entities involved in residential property might begin requiring genetic information as part of the application process. This article considers whether the use of genetic information in housing is lawful under federal and state laws. It also considers the ethical and policy issues raised by the acquisition and use of predictive genetic information in residential property transactions.

Rothstein, Mark A and Rothstein, Laura, The Use of Genetic Information in Real Property Transactions (May 1, 2017). Probate & Property: a publication of the Real Property, Trust and Estate Law section of the American Bar Association, Volume 31, Number 3.

Nicos Stavropoulos, ‘The Debate that Never Was’

The ‘Hart-Dworkin’ debate, which is widely understood to have dominated jurisprudence since the late 1960s, is a philosophical fiction. Hart only responded to Dworkin’s work in his Postscript to the Concept of Law (posthumously published in 1994), and although Dworkin wrote a rejoinder at the time, it had remained to this day unpublished. (It is now forthcoming in 130 Harvard Law Review.)

What has really dominated the field is a debate between Dworkin and his critics. The critics have resisted Dworkin’s assertion that morality plays a fundamental role in the explanation of legal rights and obligations. It is, however, doubtful that the role of morality that the critics have been denying is the one that Dworkin asserted.

Stavropoulos, Nicos, The Debate that Never Was (May 22, 2017). Harvard Law Review, Forthcoming.

‘A comprehensive look at Brexit’s impact on intellectual property rights in the UK’

“The formal process for the UK’s departure from the EU began on 29 March 2017 when the UK Government notified the European Council under Article 50 of the Lisbon Treaty of its intention to leave the EU. This started a two year period in which to negotiate a withdrawal agreement (this period can be extended if all 28 member states agree). If no agreement is reached within that period the UK will leave the EU on 29 March 2019 (or the end of any agreed extension period). If a withdrawal agreement is reached, the date on which the UK will leave the EU will be the date when that agreement takes effect, which is any date that the parties may choose, so could well be after March 2019 …” (more)

[Chris Shelley (Penningtons Manches LLP), 24 May]

David Blankfein-Tabachnick, ‘Property, Duress, and Consensual Relationships’

Speech Matters: On Lying, Morality, and the Law. By Seana Valentine Shiffrin. Princeton and Oxford: Princeton University Press. 2014. Pp. xi, 223. $35. Professor Seana Valentine Shiffrin has produced an exciting new book, Speech Matters: On Lying, Morality, and the Law. Shiffrin’s previous rigorous, careful, and morally sensitive work spans contract law, intellectual property, and the freedoms of association and expression. Speech Matters is in line with Shiffrin’s signature move: we ought to reform our social practices and legal and political institutions to, in various ways, address or accommodate moral values — here, a stringent moral prohibition against lying, a strident principle of promissory fidelity, that is, the principle that one ought to keep one’s promises, and the general value of veracity … (more)

David Blankfein-Tabachnick, ‘Property, Duress, and Consensual Relationships’, 114 Michigan Law Review 1013 (2016).

‘A Pragmatist’s View of Promissory Law with a Focus on Consent and Reliance’

This article discusses Professor Nate Oman’s excellent new book, The Dignity of Commerce, which makes an impressive case for how markets can produce ‘desirable’ outcomes for society. In addition to a comprehensive account of what he calls ‘virtues’ of markets, such as their tendency to produce cooperation, trust, and wealth, the book is full of useful and persuasive supporting information and discussions. Oman is not only a fan of markets, but he asserts that markets are the ‘center’ of contract theory, and provide its normative foundation. Elaborating, Oman concludes that ‘contract law exists primarily to support markets’ and that ‘contracts are valuable because they facilitate commerce and extend the reach of markets. It is their beneficial consequences that justify the enforcement of contracts’ … (more)

Hillman, Robert A, ‘A Pragmatist’s View of Promissory Law with a Focus on Consent and Reliance’. LawArXiv, 23 May 2017.

Professor of Law, Brunel Law School

“… The appointed person will have teaching and preferably research interests in any aspect of Private Law (broadly defined). The successful candidate will be expected to contribute to teaching at the undergraduate and postgraduate levels. Our preference is for a candidate who can offer research and teaching in one or more of the following areas: Property Law, Unjust Enrichment and Restitution, Contract, Land Law, Tort, Equity & Trusts, and Commercial Law (broadly defined) …” (more)

Iain Field, ‘A good-faith challenge to the taxonomy of tort law defences’

… The argument develops incrementally in five substantive parts. Part II outlines the range of circumstances in which good faith ‘protections’ (to use a neutral term that encompasses, but is not limited to, the possible definitions of ‘defences’ examined later in this article) operate in tort law, and demonstrates why – subject to the qualifications subsequently outlined – good faith protections should be included in a comprehensive taxonomy of tort law defences. Part III critiques possible definitions of the term ‘defences’ and demonstrates why good faith (and other similar defences) fit uneasily with these definitions. Part IV explores in greater depth the meaning of good faith and shows that, in tort law, this concept ordinarily denotes a defendant’s reasons for acting, despite the fact that those reasons may be insufficient to render his or her conduct reasonable. Part V explores three competing taxonomies of tort law defences and demonstrates why, in the light of the critical features of good faith defences revealed in Parts II–IV, these (and other similar) defences pose a specific challenge to certain of those taxonomies. Finally, Part VI offers some preliminary conclusions as to how good faith defences might be accommodated within a comprehensive taxonomy of tort law defences … (more)

Iain Field, ‘A Good-Faith Challenge to the Taxonomy of Tort Law Defences’ (2017) 40(2) University of New South Wales Law Journal.

‘Research Fellowships in Legal History at St Andrews’

“Four Research Fellowships in Legal History are available at the University of St Andrews to work with Professor John Hudson on the ERC Advance Grant funded project ‘Civil Law, Common Law, Customary Law: Consonance, Divergence and Transformation in Western Europe from the late eleventh to the thirteenth centuries’ …” (more)

[Legal History Blog, 22 May]