LSE Private Law Forum 2018-19

Wednesday 21 November, 4pm
Peter Turner (Cambridge), ‘Lex Sequitur Equitatem: Fusion and the Penalty Doctrine’

Thursday 13 December, 4pm
Dan Priel (Osgoode Hall), ‘The Impossibility of Independent Corrective Justice’

Thursday 7 February, 12pm
Prince Saprai (UCL), ‘Contract Law Without Foundations: Towards a Republican Theory of Contract Law’

Thursday 28 February, 1pm
Aness Webster (Nottingham, Philosophy), ‘Distinguishing between Criminal and Tort Law: Rights and Responsibilities’

Please contact Nick Sage (n.sage@lse.ac.uk) or Andy Summers (a.d.summers@lse.ac.uk) if you would like to attend.

‘Personal Data as an Environmental Hazard’

Omri Ben-Shahar, ‘Data Pollution’, University of Chicago Public Law & Legal Theory Paper Series, No 679 (forthcoming 2018), available at SSRN. What was the nature of the harm when data on 143 million Equifax consumers was stolen? More generally, what is the problem with personal data use and misuse by commercial players? The most immediate answer: privacy, individuals’ privacy interests are infringed. But then the question becomes what is the problem with infringing one’s privacy? Here, the answer usually is that infringing one’s privacy infringes upon her autonomy, dignity, emotional wellbeing, and such. To these non-monetary harms, one can add various monetary harms such as monetary losses associated with identity theft and other economic losses. These personal harms have led privacy scholars to focus on the private and personal aspects of data breaches … (more)

[Ronen Avraham, JOTWELL, 14 November]

Recently Published: Property Theory: Legal and Political Perspectives (Penner and Otsuka eds)

Property, or property rights, remains one of the most central elements in moral, legal, and political thought. It figures centrally in the work of figures as various as Grotius, Locke, Hume, Smith, Hegel and Kant. This collection of essays brings fresh perspective on property theory, from both legal and political theoretical perspectives, and is essential reading for anyone interested in the nature of property. Edited by two of the world’s leading theorists of property, James Penner and Michael Otsuka, this volume brings together essays which consider, amongst other topics, property and public law, the importance of legal forms in property theory, whether use or exclusion are most essential to our understanding of property, distributive justice, Lockean and Grotian theories, the common ownership of the Earth, and Confucian ideas of property.

James Penner and Michael Otsuka eds, Property Theory: Legal and Political Perspectives. 250 pp, Cambridge University Press; Reprint edition (30 Aug. 2018). ISBN-10: 1108436684.

Lloyd Bonfield, ‘Farewell Downton Abbey, Adieu Primogeniture and Entail: Britain’s Brief Encounter with Forced Heirship’

Abstract
This article observes a little-noted proposal (the Landed Property of Intestates Bill) introduced into the British Parliament in 1836. It considers the debate upon it that ensued and the accompanying pamphlet literature. The Bill proposed to alter the inheritance custom of primogeniture that directed the pattern of descent of freehold land in the absence of directions by settlement or will, and the dialogue is used as a lens to view the nexus between inheritance customs and broader political, economic and social concerns. The intensity of the dispute over primogeniture suggests that more was at stake than simply the devolution of land. The controversy in the Commons over the proposed legislation encompassed a discussion on the variety of purposes that succession law should serve. Lurking in the background in the debate over the proposed Bill was a more abstract conundrum: should succession laws primarily be crafted to serve political ends, namely, the constitution, or was it more appropriate to calibrate them to foster desirable social, economic or familial goals? In short, the debate put into sharp focus the question of what interests drive inheritance law and how attempts can be made to modify it, if and when such concerns alter over time. The Bill failed, and it would be for another century for Parliament to abolish primogeniture.

Lloyd Bonfield, Farewell Downton Abbey, Adieu Primogeniture and Entail: Britain’s Brief Encounter with Forced Heirship, American Journal of Legal History, https://doi.org/10.1093/ajlh/njy019. Published: 9 November 2018.

‘Postdoctoral Position at the University of Milan’

“The University of Milan will recruit a postdoctoral researcher in Private International Law or Civil Procedure or European Private law, starting in January 2019, for a duration of 21 months (renewable once). The researcher will work on the project ‘Facilitating cross-border family life: towards a common European understanding – EUFam’s II’ …” (more)

[Antonio Leandro, Conflict of Laws .net, 13 November]

Price v MGN, “Disgraced” chief constable’s libel claim not an abuse’

“On 8 November 2018, Mr Justice Warby handed down judgment in the case of Price v MGN Ltd [2018] EWHC 3014 (QB). The proceedings relate to three articles (copies of which are annexed [pdf] to the judgment) which made serious imputations about the Claimant’s alleged participation in the illegal accessing of the mobile phone records of journalists who were investigating him when he was the Chief Constable of Cleveland Police (the ‘Interception Meanings’) …” (more)

[Mathilde Groppo, Inforrm’s Blog, 14 November]

Victor Goldberg, ‘The Lost Volume Seller In English Law’

Abstract
If a buyer breaches a contract but the market price has remained unchanged, English courts and the treatises have treated the seller as a ‘lost volume seller’. The seller, it is argued, could have had two sales, not one, so it lost the profit on the second sale. This paper recognizes that the buyer has an option to terminate and that the contract prices that option. The implicit option price of the lost volume remedy results in an absurd contract, setting the option price high when it should be low and vice versa. The default rule ought to be the contract-market differential (zero in these cases) with the parties determining the appropriate option price with a nonrefundable deposit or liquidated damages.

Goldberg, Victor Paul, The Lost Volume Seller In English Law (November 6, 2018). Columbia Law and Economics Working Paper No 594.

Paul Babie, ‘The Future of Private Property’

Abstract
Using the theory of inequality developed by Wilkinson and Pickett in The Inner Level: How More Equal Societies Reduce Stress, Restore Sanity and Improve Everyone’s Well-being, this review essay canvasses two recent normative contributions that claim a way forward for the concept and law of private property: Alexander’s defence of private property as fostering human flourishing through the living of a good life, as advanced in Property and Human Flourishing, and Posner and Weyl’s radical liberal overhaul of the very content of property found in Radical Markets: Uprooting Capitalism and Democracy for a Just Society. The essay assesses Alexander’s focus on the role of obligation as a component of private property necessary to fostering the living of a good life, and Posner and Weyl’s proposal that private property be replaced with a new ideal-typic form of property known as ‘partial common ownership’. It concludes with a reflection on the ubiquity of inequality in any proposal one might adopt for either the overhaul or the replacement of private property.

Paul Babie, The Future of Private Property, Sydney Law Review volume 40:33 (2018).

Dignam and Oh, ‘Disregarding the Salomon Principle: An Empirical Analysis, 1885–2014′

Abstract
For over a century UK courts have struggled to negotiate a coherent approach to the circumstances in which the Salomon principle – that a corporation is a separate legal entity – will be disregarded. Empirical analysis can facilitate our understanding of this mercurial area of the law. Examining UK cases from 1885 to 2014, we created a final dataset of 213 cases coded for 15 different categories. Key findings confirm historical patterns of uncertainty and a low but overall fluctuating disregard rate, declining recently. Criminal/fraud/deception claims link strongly to disregard outcomes. Private law rates are low but tort claims have a higher disregard rate than contract. Individual shareholders are more susceptible to disregard than corporate shareholders. The English Court of Appeal plays a key role in successful disregard claims particularly in tort. In general, while disregard rates were very context specific, concerns about the diminished sanctity of the Salomon principle may be overblown.

Alan Dignam and Peter B Oh, Disregarding the Salomon Principle: An Empirical Analysis, 1885–2014, Oxford Journal of Legal Studies, https://doi.org/10.1093/ojls/gqy027. Published: 6 November 2018.

Mark Coen and Niamh Howlin, ‘The Jury Speaks: Jury Riders in the Nineteenth and Twentieth Centuries’

Abstract
Jury riders are statements that accompany verdicts. This article examines the use and contents of jury riders in Ireland and England in the nineteenth and twentieth centuries. It reveals the wide variety of contexts in which jurors appended statements to their verdicts and suggests a typology of jury riders in order to better understand the motivations behind such statements. It asks why jury riders survived into the twentieth century and considers the factors that led to riders’ ultimate decline.

Mark Coen and Niamh Howlin, The Jury Speaks: Jury Riders in the Nineteenth and Twentieth Centuries, American Journal of Legal History, https://doi.org/10.1093/ajlh/njy017. Published: 6 November 2018.