Save the Dates: Knapp Conference & KCON 10

“The University of California Hastings College of the Law is sponsoring a symposium to honor Professor Charles L Knapp on the completion of his 50th year of law teaching. (He began his teaching career at NYU School of Law in fall 1964.) The day-long program will take place on October 24, 2014 and will include four panels that will focus on areas that are of particular interest to Professor Knapp, but will also address topics with broad appeal to contract law scholars …” (more)

[Jeremy Telman, ContractsProf Blog, 20 August]

Guido Calabresi, ‘A Broader View of the Cathedral: The Significance of the Liability Rule, Correcting a Misapprehension’

Recent years have seen a resurgence of Torts viewed as a purely private legal arrangement: whether described in terms of compensatory justice — the right of an injured party to be made whole — or of redress for civil wrongs — the right of an injured person to get back at the one who injured him. These positions reject the approach of the system builders (to use Izhak Englard’s felicitous phrase), those who see torts as part of a legal-political-economic structure of a polity. This latter, “public,” view of torts has been dominant, at least since my first article, and Walter J Blum and Harry Kalven’s answer to it, aptly titled “Public Law Perspectives on a Private Law Problem”. It is of the relationship between these approaches, and of the inevitability of the public-law (and hence, in part, economic) view of torts that I wish to write today. In doing so, however, I mainly want to correct an error that many system builders have made: that is, of viewing the liability rule (in torts and in its cognates) as a “second best” way of mimicking markets when markets “will not work,” or “are not available”. I want to claim a more significant economic role for the liability rule, and hence for torts, than that. For reasons that will be clear in due course, I call this “A Broader View of the Cathedral”.

Calabresi, Guido, A Broader View of the Cathedral: The Significance of the Liability Rule, Correcting a Misapprehension (August 15, 2014). Law and Contemporary Problems, Vol 77, No 2, 2014.

Alex Long, ‘The Forgotten Role of Consent in Defamation and Employment Reference Cases’

As has been well documented, the fear of defamation suits and related claims leads many employers to refuse to provide meaningful employment references. However, an employer who provides a negative reference concerning an employee enjoys a privilege in an ensuing defamation action if the employee has consented to the release of information concerning the employee’s job performance. Thus, many attorneys now advise prospective employers to have applicants sign consent agreements, permitting the prospective employer to conduct an investigation into the applicant’s work history and releasing from liability anyone who provides information about the employee’s work history. The Restatement (Second) of Torts has been highly influential in shaping the development of the defense of consent in the defamation context. This article looks at the consent defense within the context of employment reference cases. Specifically, the article examines the consent defense as described in the Restatement from an historical perspective and argues that the authors fundamentally misstated the law in a manner that has had negative consequence for employees who have been the victims of defamatory references.

Long, Alex B, The Forgotten Role of Consent in Defamation and Employment Reference Cases (August 17, 2014). Florida Law Review, Vol 66, No 719, 2014.

Adam Zimmerman, ‘The Corrective Justice State’

Prosecutors, federal agencies, state attorneys general, and other officers in the executive branch often shape national policy through large monetary settlements with corporations. But the debate over this kind of “regulation by deal” has changed dramatically over the past decade. Although commentators once questioned whether such settlements made for good policy or exceeded officials’ legal authority, today’s headlines instead raise questions long associated with private justice: How do state actors appropriately compensate direct victims of the gulf coast oil spill? Is the National Mortgage Foreclosure Settlement sufficiently limited to paying only those homeowners with the most “deserving” losses?

The growing commitment of public resources to collecting victim compensation from corporate wrongdoers characterizes what I call a “Corrective Justice State”. Corrective justice, a concept ordinarily associated with the private law of torts, contracts, or property, differs from traditional public law approaches to compensation in three ways. Corrective justice (1) repairs discrete injuries between identifiable parties, rather than curing diffuse social harm; (2) uses wrongdoers’ funds to restore individual losses, rather than public funds to improve public welfare; and (3) favors retrospective sanctions of specific wrongdoers over prospective regulation. Increasingly, public officials justify massive settlements with the rhetoric of corrective justice to bolster new, creative applications of executive power.

But that same corrective justice philosophy may poorly serve those who depend on the modern administrative state for effective regulation and compensation. To the extent the Corrective Justice State relies on discretionary settlement decisions to regulate corporate behavior, it may forgo prospective solutions among broad constituencies, with traditional democratic checks from courts and legislatures. And despite their lip-service to corrective justice — where state actors trumpet payouts financed by corporate wrongdoers for the benefit of a “deserving” class of victims — public officials often lack information required to serve parties’ specific interests in corrective justice.

Government actors need to move beyond corrective justice principles to address our collective concerns. State actors may continue to pursue corrective justice when they broker large compensatory settlements, so long as they adopt more procedural safeguards for the victims they purport to serve — including more participation and judicial review. But, to address collective and diffuse problems, those same safeguards should be relaxed to account for (1) value of individual claims, (2) the diversity of interests and relief, and (3) the extent to which state action forecloses private litigation.

Zimmerman, Adam S, The Corrective Justice State (August 16, 2014). Journal of Tort Law 5(1-2) 189 (2014); Loyola-LA Legal Studies Paper No 2014-36.

Robin Bradley Kar, ‘Contract as Empowerment Part II: Harmonizing the Case Law’

In ‘Contract as Empowerment’, I develop a new theory of contract, ‘Contract as Empowerment’. This article applies that theory to a broad range of doctrinal problems and argues that contract as empowerment offers the best general interpretation of contract law.

The argument proceeds in two stages. First, I identify a core set of legal doctrines, which provide an especially suitable test for different interpretations of contract. Second, I argue that contract as empowerment has the unique capacity to explain this entire constellation of doctrines. Along the way, contract as empowerment offers (1) a more compelling account of the consideration doctrine than exists in the current literature; (2) a more penetrating account of the expectation damages remedy; and (3) a concrete framework to determine the appropriate role of certain doctrines like unconscionability, which limit freedom of contract. Contract as empowerment also explains key doctrines and answers central puzzles at each basic stage of contract analysis. When coupled with its other normative and explanatory advantages, contract as empowerment thus offers the best general interpretation of contract.

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 distinct 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, among others. The current theory suggests that many seeming conflicts between doctrines that serve these values are not, in fact, zero-sum games. So long as the complex interlocking rules of contract are fashioned in the right way, these doctrines can work together to serve a deeper and normatively satisfying principle of empowerment distinctive to contract. This framework can be used to guide legal reform and identify places where market regulation is warranted and needed in many different contexts of exchange — from those involving consumer goods to labor, finance, credit, landlord-tenant, home mortgages and many others.

There is also a deeper implication of contract as empowerment. Contract as empowerment reinterprets the basic nature of contract law and many related forms of economic activity. It suggests that contract law is not simply a set of rules that aim to maximize efficiency and promote personal consumption, rooted solely in competition and self-interest run wild. Contract law is instead a set of rules that produce genuine legal obligations in part because its rules are simultaneously personally empowering and reflective of a deeper moral ideal of equal respect for persons. If — as this article argues — this represents the best general interpretation of contract, then contracts and many related market activities have a distinctive moral fabric that has been running through them for some time now. This moral fabric has been obscured by classical economic interpretations but cannot be ignored in any true social science of these phenomena. Contract as empowerment seeks to cure these distortions. It can lead to a distinctive societal self-understanding, which better integrates economic activity into lives that brim with moral and civic virtue.

Kar, Robin Bradley, Contract as Empowerment Part II: Harmonizing the Case Law (August 6, 2014).

Scherpe and Sloan, ‘Contractualisation of Family Law in England and Wales’

This paper was prepared for the ‘Contractualisation of Family Law’ section of the International Academy of Family Law’s XIXth International Congress of Comparative Law in July 2014. Its substantive text was completed in December 2013. The questionnaire was prepared by Professor Frederik Swennen.

Scherpe, Jens M and Sloan, Brian, Contractualisation of Family Law in England and Wales (August 1, 2014). University of Cambridge Faculty of Law Research Paper No 45/2014.

Bryant Walker Smith, ‘Proximity-Driven Liability’

This Article argues that commercial sellers’ growing information about, access to, and control over their products, product users, and product uses could significantly expand their point-of-sale and post-sale obligations toward people endangered by these products. This Article first describes how companies are embracing new technologies that expand their information, access, and control, with primary reference to the increasingly automated and connected motor vehicle. It next analyzes how this proximity to product, user, and use could impact product-related claims for breach of implied warranty, defect in design or information, post-sale failure to warn or update, and negligent enabling of a third-party’s tortious behavior. It finally flips the analysis to consider how the uncertainty caused in part by changing liability could actually drive companies to further embrace this proximity.

Bryant Walker Smith, ‘Proximity-Driven Liability’. Georgetown Law Journal, Volume 102, Issue 6 (2014).

Bevan Marten, ‘Book Review – Tort Law: Challenging Orthodoxy

This book review of Stephen G A Pitel, Jason W Neyers and Erika Chamberlain (eds) Tort Law: Challenging Orthodoxy (Hart Publishing, Oxford, 2013) focuses on Kit Barker’s chapter on the concept of vindication in torts and private law in particular, and provides some comments on New Zealand’s approach to the concept.

Marten, Bevan, Book Review – Tort Law: Challenging Orthodoxy (February 1, 2014). [2014] New Zealand Law Journal 166.

Ken Oliphant, ‘Tort Law, Risk, and Technological Innovation in England’

This paper considers the impact of technological innovation — and the risks arising from it — on the development of English tort law in the modern era, dating from around 1750. At a time when the old forms of action were losing their grip, unprecedented social changes resulted from the Industrial Revolution and the risks that it created. New mechanisms (insurance, regulation and social welfare) were introduced to control these risks and mitigate their effects. Tort law too was obliged to adapt, and its modern contours bear the mark of this history. However, fundamental questions about the proper function of tort law relative to alternative compensatory and regulatory mechanisms remain to be satisfactorily resolved.

Ken Oliphant, ‘Tort Law, Risk, and Technological Innovation in England’. McGill Law Journal, 59:4 (June 2014).

Lord Neuberger, ‘The Remedial Constructive Trust – Fact or Fiction’

“The trouble for a judge who wants to give an interesting or challenging lecture on a controversial point of law is that he may be disqualifying himself from subsequently determining the issue on the ground that he is parti pris. I have always wondered whether that was really a justified concern. The reasons for my scepticism are essentially twofold. In the first place, we all know that judges are human – well, most of us are – and so everyone will appreciate that a judge will often have a preliminary, even a strong preliminary, opinion on an issue that he is trying. It could be said to be positively more consistent with open justice that such an opinion is known in advance rather than locked away in his brain …” (more)

Lord Neuberger, ‘The Remedial Constructive Trust – Fact or Fiction’. Speech at the Banking Services and Finance Law Association Conference, Queenstown, 10 August 2014.