Ilaria Caggiano, ‘Disgorgement, Compensation and Restitution: A Comparative Approach’

The article aims at defining the scope of disgorgement in Italian law, which draws on common law experience, and asks whether the Italian legal system can provide similar recourses. English and US law have conceived ‘disgorgement damages’ as a distinctive concept. I verify whether a rule of disgorgement of profits is principled in the Italian legal system as a generally available private law remedy or is just applicable in certain specific cases. I propose 3 hypothetical cases to measure the attitude of different legal systems. The theoretical foundations of disgorgement as a private remedy are located in different branches of private law (compensation, restitution, property law). English and US law place disgorgement in the more general framework of the law of unjust enrichment and restitution. However, disgorgement can be attracted to other branches of law, as I demonstrate with reference to the Italian legal system. By highlighting the functions that disgorgement may perform in each case proposed, I conclude whether disgorgement is applicable by Italian judges, in addition to the express provisions laid down by legislation.

Ilaria Amelia Caggiano, Disgorgement, Compensation and Restitution: A Comparative Approach, Global Jurist, October 2016. Published Online: 2016-10-06. ISSN (Online) 1934-2640, ISSN (Print) 2194-5675, DOI: 10.1515/gj-2016-0008.

Remigius Nwabueze, ‘The Liability Rule, Proprietary Remedies and Body Parts’

Sometimes courts and commentators disavow a proprietary approach to excised body parts in the belief that non-proprietary remedies are adequate to the task. A belief of this sort, this type of conceptual resistance to the application of property law to body parts, is allegedly captured in the compendious expression known as the liability rule. Moore v Regents of the University of California clearly illustrates this type of opposition. Some recent scholarship has also tried to ground this sort of exclusive non-proprietary approach to body parts in the liability rule component of the analytical framework developed by Calabresi and Melamed. This piece interrogates the idea that nonproprietary causes of action should exclusively furnish the applicable theory of liability in relation to body parts; it suggests an understanding of the theoretical framework of Calabresi and Melamed which facilitates a proprietary approach to body parts along with current non-proprietary approaches. I argue that property, liability and inalienability rules basically serve the same purpose (protection of an entitlement in the nature of a property interest) and that the difference amongst them is one of degree rather than nature; also, none of the triad applies separately and independently of one another. Thus, I suggest that the liability rule is not essentially non-proprietary and could be used to protect a proprietary entitlement. I tested my understanding of Calabresi and Melamed’s framework against a case that involved damaged kidney in order to show the difference the framework, as conceived by me, could make to the remedial fortunes of a claimant in body parts’ litigation.

Remigius N Nwabueze, The Liability Rule, Proprietary Remedies and Body Parts. Liverpool Law Review (2016), doi:10.1007/s10991-016-9188-9.

Hironari Momioka, ‘Punitive Damages Revisited: A Statistical Analysis of How Federal Circuit Courts Decide the Constitutionality of Such Awards’

Using the data of punitive damages decisions of US federal circuit courts from 2004 to 2012, this paper attempts to establish empirically the following. (1) There is no apparent statistical difference between the levels of jury and judge awards. (2) US Supreme Court decisions such as Philip Morris (2007) or Exxon (2008) do not actually or substantially affect the level of punitive damage awards. (3) With regard to the cases involving remittitur or reduction of awards, the Exxon decision did not radically affect the decreasing ratio of punitive to compensatory damage awards. (4) As the levels of compensatory awards go up, the ratio becomes strikingly low and stable. (5) Finally, the proportionality between punitive and compensatory awards is not the key factor that influences upper court judges when they consider the constitutionality of punitive damages. Unexplained portions of the relationship between the amount of punitive damages and the wealth of a defendant remain to be examined further.

Momioka, Hironari, Punitive Damages Revisited: A Statistical Analysis of How Federal Circuit Courts Decide the Constitutionality of Such Awards (September 30, 2014).

Divergence and Reform in the Common Law of Contracts: George Washington University Law School, Washington DC, 19 November 2016

With our co-hosts Dean Blake Morant of The George Washington University Law School and Professors Larry DiMatteo of the University of Florida and Martin Hogg of the University of Edinburgh, The George Washington Law Review is proud to present its Fall 2016 Symposium, Divergence and Reform in the Common Law of Contracts. This Symposium continues a tradition of biennial conferences that began at the University of Sheffield, UK in 2011, followed by a conference held at the University of Edinburgh in 2013. But this 2016 Symposium is not your grandfather’s contract law. Instead, this conference takes a 21st Century approach to comparative issues in contract law, examining the most pressing controversies, debates, and challenges currently shaping the United States and United Kingdom’s shared legal tradition in the area of common law contracts … (more)

Matthew Mills, ‘The Development of the Public Benefit Requirement for Charitable Trusts in the Nineteenth Century’

The first express judicial reliance on the public benefit requirement for charitable trusts to conclusively determine charitable validity seems to occur in 1862, although implied references to similar ideas are seen up to a century previously. With limited exceptions, the origin of the public benefit requirement has been under-examined. This article argues that a multi-factorial and contextual approach best explains its adoption in the nineteenth century. Three developments in nineteenth-century law and society encouraged judges to broaden charity law: (1) increasing religious pluralism, (2) increasing state education, and (3) regular income taxation. These changes, combined with the formalization of the doctrine of precedent, required both some limit on the scope of charity law and a new substantive justification for novel decisions on charitable validity. This article argues that judges and lawyers, whether intentionally or subconsciously, borrowed ideas of public benefit from closely related mortmain cases to develop the public benefit requirement.

Matthew Mills, The Development of the Public Benefit Requirement for Charitable Trusts in the Nineteenth Century. Journal of Legal History, Volume 37, 2016 – Issue 3. Published online: 20 Oct 2016. Download citation

Roy Shapira, ‘Reputation Through Litigation: How the Legal System Shapes Behavior by Producing Information’

The law affects our behavior not only directly by imposing legal sanctions, but also indirectly, by providing information that shapes the reputations of individuals and organizations. This Article is the first to fully flesh out the reputation-shaping aspects of the law.

The Article’s first major contribution is in explaining how reputation works. Legal scholars are increasingly recognizing that reputation matters. Yet so far the literature has stayed remarkably silent on how exactly reputation matters. This Article draws from a fast-growing multidisciplinary body of reputation research to examine why similar behaviors lead to different reputational outcomes. A key takeaway is that reputational sanctions are much noisier than was previously acknowledged: the market systematically under-reacts to certain types of misbehaviors and over-reacts to others.

The Article’s second major contribution comes from mapping out the different ways in which the law affects reputational sanctions. In the process of finding out whether to impose legal sanctions, the legal system produces as a byproduct information on the behavior of the parties to the dispute: what top managers knew and when they knew it, whether the adverse action was an isolated mistake or whether it is indicative of the company’s operational culture, and so forth. This information reaches third parties, and makes them reassess their beliefs about the company. Contrary to the common assumption among legal scholars, law and reputation are not independent of each other, but rather complement each other. A well-functioning legal system reduces noise and increases the accuracy of reputational sanctions.

Acknowledging the informational role of the law generates important policy implications. First, the Article calls for a more cautious approach to scaling back legal intervention. If the law indeed complements non-legal sanctions, then any proposal to scale back legal intervention should also take into account the expected negative impact on non-legal deterrence. Second, the Article reassesses practical and timely debates such as the desirability of heightened pleading standards. If litigation indeed generates quality information on the behavior of market participants (a positive externality), then we should reevaluate key legal institutions according to how they contribute to information production.

Shapira, Roy, Reputation Through Litigation: How the Legal System Shapes Behavior by Producing Information (October 18, 2016). Washington Law Review, Vol 91, No 3, 2016.

‘Restitution and Unjust Enrichment Discussion Group’

“Private law theory is enjoying a revival in Cambridge, MA. Alongside the HLS Private Law Workshop, the Project on the Foundations of Private Law and the Law and Philosophy Society, last Thursday saw the launch of the Restitution and Unjust Enrichment Discussion Group at Harvard. The RUED Group brings together scholars and students in the Boston area who share an interest in the law of unjust enrichment to meet and discuss topical developments in the field …” (more)

[Samuel Beswick, New Private Law, 20 October]

Zdenek Kuhn ‘Transformation of the Concept of Privacy and Liability for Its Invasion at the Outset of the Third Millennium’

The Internet has substantially changed the way we conceive human conduct; it has fundamentally altered our chance to have control over spreading information and the impact of human behaviour in the course of time. The paper analyzes the transforming modes of privacy invasion over centuries. It explains the transformation of invasion of privacy in the Internet era and the transformation of the concept of privacy itself. Next, it attempts to show that the protection of privacy by public law against giant providers of telecommunications and data services and corporations such as Google and Facebook is relevant. Efficient regulation should be exercised by the law of the European Union because autonomous domestic regulations would endanger free movement of services across the EU; moreover, separate national regulation in fighting global giants like Google could hardly be successful. On the other hand, not much sense can be seen in public-law or even European regulation of activities that are local by nature, such as monitoring cameras in private buildings which are to serve the protection of property of the camera system operators. The author explains that regulation under public law becomes toothless in such cases, sanctioning becomes selective and essentially random. In addition, such regulation has a potential to further alienate the law from its ordinary recipients.

Kuhn, Zdenek, Transformation of the Concept of Privacy and Liability for Its Invasion at the Outset of the Third Millennium (October 19, 2016). Charles University in Prague Faculty of Law Research Paper No 2016/II/4.

What is Private Law For? On Choice, Empowerment and Protection: MEPLI Round Table Conference, Maastricht University, 16 December 2016

“Albert Camus famously wrote that ‘life is the sum of all your choices’. Private lawyers could not agree more. At the core of private law lies the idea that individuals are allowed to know better than the State or anyone else what suits their needs and interests and to act accordingly. People may decide for themselves to contract, to dispose of their property before or after death, to start a family, to claim compensation for other people’s unlawful conduct, or to refrain from any of this. At the same time, private law balances individual autonomy with countervailing considerations that differ from one subfield to another …” (more)

[Catalina Goanta, MEPLI Blog, 18 October]

‘What’s “Private” about the Rule of Law?’

Gillian K Hadfield and Barry R Weingast, Is Rule of Law an Equilibrium Without Private Ordering? (University of Southern California Legal Studies Paper No 16-18; Stanford Law and Economics Olin Working Paper No 493, 2016), available at SSRN. In their new paper, Is Rule of Law an Equilibrium Without Private Ordering?, Gillian Hadfield and Barry Weingast make a provocative claim about the rule of law: that private ordering is what produces and sustains it, not the institutions of government. This is an important contribution to rule of law debates, which are so heavily focused on public institutions and public law while leaving the role of private ordering and private law undertheorized … (more)

[Lisa Austin, JOTWELL, 20 October]