Herbert Kritzer, ‘Lawyers’ professional liability: comparative perspectives’

Among the four mechanisms of discipline and regulation of legal professionals identified by David Wilkins, liability controls have received almost no attention from scholars who study legal professions. This paper presents a comparative analysis of what is known about lawyers’ professional liability drawing on reports concerning a group of 13 countries representing every continent. The discussion covers three topics: the frequency of LPL claims; the areas of practice that produce LPL claims; and insurance requirements and arrangements for compensating those who successfully bring an LPL claims. The analyses show that empirical information is available for only a small subset of the countries considered, but what is available shows very substantial variation in both the frequency of claims and the areas of practice producing those claims. Insurance requirements and arrangements also vary substantially, with LPL insurance being mandatory in only about half of the countries.

Herbert M Kritzer, Lawyers’ professional liability: comparative perspectives. International Journal of the Legal Profession, published online: 25 Aug 2016.

Antonia Layard, ‘Public Space: Property, Lines, Interruptions’

This paper suggests that public space in England is dominated by property thinking, partially addressed by lines and could be more frequent if we create interruptions. It understands the legal production of public space not as a two-dimensional designation but instead as a process, or a series of processes: spatial, legal, material and, crucially, temporal, for creating spaces to call publics into being. While the paper agrees that property thinking limits our abilities to be in public, particularly on private land, and acknowledges that ‘lines’ including rights to roam and highways are limited, it suggests that we can – and should – create interruptions to address the growing shortage of public space. The paper argues that to do this, we need to think about time as much as space in property law. We also need to think explicitly about how, when and where we might disrupt private land uses for public use, contributing to a geography of hope.

Antonia Layard, Public Space: Property, Lines, Interruptions, 2 Journal of Law, Property, and Society 1 (August 2016).

Hugh Breakey, ‘Two Concepts of Property: Ownership of Things and Property in Activities’

Property in Activities is a distinct and integrated property-concept applying directly, not to things, but to actions. It describes a determinate ethico-political relation to a particular activity – a relation that may (but equally may not) subsequently effect a wide variety of relations to some thing. Property in Activities illuminates many of the vexing problem cases in property theory, including communal, intangible, fugacious, hunting, fishing, customary and recreation property rights. The same is true of property in various sectors of law, in philosophical arguments such as Locke’s, and in historical usage prior to the nineteenth century. By illustrating how one stable concept can resolve this myriad of otherwise puzzling cases, I argue that Property in Activities is as important a concept as Ownership of Things.

Breakey, Hugh E, Two Concepts of Property: Ownership of Things and Property in Activities (July 29, 2011). The Philosophical Forum 42, no 3 (2011): 239-65.

Acciarri and Castellano, ‘Mandatory Third Party Insurance: God, the Devil, and the Details’

The study of mandatory insurance systems may be carried out on two different levels. On the one hand, it is possible to analyze theoretical relations between some properties or elements belonging to that class of systems. On the other, given a set of relevant conditions (which determines a particular structure of transaction costs), empirical outcomes of individual systems can be foreseen. Theoretical relations are instrumentally useful in that process. However, although the mandatory purchase of liability insurance is the property or element which characterizes that kind of systems, the theoretical relations derived only from that property or element are not enough to judge the merits of each individual mandatory insurance system as a whole.

Furthermore, from a purely theoretical viewpoint, the duty of insuring brings about fewer consequences than those frequently attributed to such system’s element. For example, neither a significant rise in the amount of insured cars, nor internalization of third party losses, nor lesser delay in paying victims compensations must necessarily follow from that isolated duty. Therefore, it is much more accurate to relate some of those effects to other characteristics of the systems, finer-grained than the legal obligation of contracting insurance coverage. Moreover, associating the duty of insuring with some empirical outcomes in the oversimplified way referred to above, has often been used as one of the arguments to support or reject some public policies of car accident control, which would introduce, at least, some vagueness or inaccuracy.

This work studies a few theoretical relations between some fine-grained elements of mandatory insurance systems underlying the obligation to purchase coverage, from a transaction costs perspective. We conclude that, in relation to a set of empirical conditions typically related to developing societies, it is possible to find relatively preferable an individual system including that kind of obligation. However, this statement does not mean that every individual system imposing mandatory insurance is adequate for that type of real realms, or that the duty of insuring should be discarded for societies of a different kind.

Acciarri, Hugo A and Castellano, Andrea, Mandatory Third Party Insurance: God, the Devil, and the Details (April 22, 2005). Berkeley Program in Law and Economics UC Berkeley, Latin American and Caribbean Law and Economics Association (ALACDE) Annual Papers, 2005.

Sean Sullivan, ‘Why Wait to Settle? An Experimental Test of the Asymmetric Information Hypothesis’

The US legal system encourages civil litigants to quickly settle their disputes, yet lengthy and expensive delays often precede private settlements. The causes of these delays are uncertain. This paper describes an economic experiment designed to test one popular hypothesis: that asymmetric information might be a contributing cause of observed settlement delays. Experimental results provide strong evidence that asymmetric information can delay settlements, increasing average time-to-settlement by as much as 90% in some treatments. This causal relationship is robustly observed across different bargaining environments. On the other hand, results do not obviously confirm all aspects of the game-theoretic explanation for this relationship. And they suggest that asymmetric information may be only one of several contributing causes of settlement delay.

Sean P Sullivan, Why Wait to Settle? An Experimental Test of the Asymmetric Information Hypothesis (June 25, 2016).

Eric Alden, ‘Promissory Estoppel and the Origins of Contract Law’

Contrary to Samuel Williston’s description of the ALI’s formal restatement of contract law as merely presenting the law ‘as it is, not as a new law’, the doctrine of promissory estoppel set forth in Section 90 thereof does not represent an ancient principle of contract law. Rather, it constitutes a relatively recent and largely artificial innovation by Williston and his colleague Arthur Corbin. To overcome potential objections to such novelty, Williston and Corbin advocated for their new doctrine on the basis of specific claims of historical authority therefor. In particular, they asserted that promissory estoppel was doctrinally and philosophically consonant with the origins of English contract law during the Middle Ages. Those claims are not well-founded.

Specifically, Williston, Corbin and other proponents of promissory estoppel have focused on the fact that during the period from roughly 1350 to 1600 litigants and courts incrementally turned for the enforcement of contract to the tort writ of trespass on the case sounding in assumpsit in substitution for the use of well-established, preexisting contractual writs. Yet these proponents of promissory estoppel have ignored the underlying reasons for, and limitations of, that historical development. Contrary to their implication, there occurred no fundamental doctrinal rejection of preexisting contract law, to which the doctrine of promissory estoppel would have been wholly alien. Rather, this circumvention of the preexisting contractual writs by means of assumpsit came to pass as the direct result of specific jurisdictional and procedural limitations that had hobbled the use of those contractual writs.

Moreover, and critically, both prior to and during the period of this creative extension of assumpsit the fundamental principle of reciprocity in contract was repeatedly asserted by the courts and commentators. The major extension of assumpsit in the mid-1500s into the realm of the principal preexisting contractual writ for informal contracts, debt upon contract, was temporally coupled with and limited by this principle, which came to be expressed as the doctrine of consideration. Promissory estoppel, which rejects at its core the principle of reciprocity in contract, is antithetical to this history.

Alden, Eric, Promissory Estoppel and the Origins of Contract Law (February 1, 2016).

Dmitry Bam, ‘Restoring the Civil Jury in a World Without Trials’

Early in this nation’s history, the civil jury was the most important institutional check on biased and corrupt judges. Recently, concerns about judicial bias, especially in elected state judiciaries, have intensified as new studies demonstrate the extent of that bias. But the jury of Hamilton, Madison, and Jefferson is nowhere to be found. In fact, the civil jury is virtually dead. It is used in less than 1% of all civil cases, and even when it makes a rare appearance, the jury’s powers have been significantly curtailed.

This article argues that we must reimagine the civil jury to match the framework of modern civil litigation and modern civil procedure. Civil litigation in the 21st century revolves around pre-trial practice, including the motion to dismiss and the motion for summary judgment. Today, judges alone decide those dispositive motions. And when the judges deciding these motions are biased, the jury is conspicuously absent. I propose that jurors serve alongside judges to decide fact-intensive dispositive motions on what I call Hybrid Judicial Panels. This proposal restores the jury’s historical power to control biased judges, and offers the people themselves a renewed role in modern civil litigation.

Bam, Dmitry, Restoring the Civil Jury in a World Without Trials (August 25, 2016). Nebraska Law Review, Vol 94, No 4, 2016.

May and Cooper, ‘Liberty of Contract and the Free Market Foundations of Intellectual Property’

The value of copyrights and patent rights is secured and maximized through market exchanges – both outright sales of exclusive rights and through licensing agreements. It is often the case that creative artists or inventors can maximize their economic returns by assigning their rights to more highly capitalized entrepreneurs or commercial enterprises that may be better situated to use, reproduce, or sell the creative works or inventions. Meanwhile, by all estimates patent licensing agreements generate well over a hundred billion dollars annually for American enterprises. And licensing of music, movies, and other copyrighted works through digital media technologies collectively generates billions of dollars each year.

In considering the astonishing economic value of intellectual property and its future potential in the digital age, we need to be mindful of the free market foundations of intellectual property rights in the United States. And in considering the importance of market exchanges and licensing agreements involving intellectual property as drivers of economic growth and innovation, we need to be mindful that liberty of contract is an indispensable component of the free market foundations of intellectual property rights.

Specifically, there is a close connection between American constitutionalism and the free market enterprise system. To be sure, the US Constitution does not formally institute capitalism as the nation’s economic system. However, the Constitution contains several provisions particularly favorable to free market enterprise. Just as significantly, legal and policy developments of the 19th and early 20th centuries built upon the Constitution’s entrepreneurial, market-friendly foundation.

This paper considers intellectual property in the context of American constitutionalism and the emergence of free market capitalism and, more particularly, the role played by liberty of contract protected by the Constitution. It focuses on the interstate commercial marketplace and the US copyright and patent systems as they developed during the 19th and early 20th centuries. Building on the Constitution’s framework and the work of the First Congress, the developments of the first several decades that followed established intellectual property as a form of exchangeable capital in a competitive interstate commercial marketplace. Although often overlooked, the protections accorded to copyrights and patent rights proved particularly conducive to free market economics, and they performed an important role in advancing art and innovation in the United States during the first 150 years under the Constitution.

May, Randolph J and Cooper, Seth L, Liberty of Contract and the Free Market Foundations of Intellectual Property (July 29, 2016). Perspectives from FSF Scholars, Vol 11, No 27, Jul 2016.

John Mee, ‘Prevention of Benefit from Homicide: A Critical Analysis of the Law Reform Commission’s Proposals’

This article offers a critique of the Irish Law Reform Commission’s recent proposals on the prevention of benefit from homicide. A person who has committed murder or manslaughter could potentially benefit in various ways, eg through inheriting from the estate of his or her victim or through the operation of the right of survivorship in the context of a joint tenancy. Cases in the succession law context are currently governed by s 120(1) of the Succession Act 1965, while in other instances an analogous common law principle is applied. In principle, the idea of providing for a more detailed and comprehensive statutory regime is uncontroversial. However, as the article argues, the Law Reform Commission’s proposal in this respect is defective in a number of ways. The article criticises the inclusion of attempted murder as one of the offences triggering the prevention of benefit principle, as well as the exclusion of those guilty of homicide as accessories and the treatment of persons who are unfit to be tried. In addition, the article criticises the Law Reform Commission’s proposals in relation to joint tenancies on the basis that they go beyond what is necessary to prevent the offender from benefitting from the homicide.

Mee, John, Prevention of Benefit from Homicide: A Critical Analysis of the Law Reform Commission’s Proposals (August 24, 2016). (2016) 39(1) Dublin University Law Journal, forthcoming.

Tun-Jen Chiang, ‘The Information-Forcing Dilemma in Damages Law’

Courts assessing compensatory damages awards often lack adequate information to determine the value of a victim’s loss. A central reason for this problem, which the literature has thus far overlooked, is that courts face a dilemma when applying their standard information-forcing tool to the context of damages. Specifically, the standard method by which courts obtain information is through a burden of proof. In the context of assessing damages, this means a rule requiring plaintiffs to prove the value of a loss with precision. But courts will often face a situation where it is clear that the plaintiff has suffered a loss, but where the plaintiff cannot prove the exact amount of the loss. A court that strictly enforces the burden of proof would award zero damages in such a case, producing a harsh result. But a court that avoids this result by instead awarding its best guess at the correct amount — effectively forgiving the inadequacy of plaintiff’s proof — then undermines future incentives for plaintiffs to produce rigorous evidence.

The result of this dilemma is that courts oscillate between strict and forgiving approaches, causing much confusion. Explaining the dilemma helps alleviate the confusion and points to a solution. In principle, courts should require a party to produce damages evidence if, and only if, the party is the lower cost provider of that evidence, and the benefit of having the evidence outweighs the cost of collecting it. The messy legal standards for calculating damages in various fields can be understood as clumsy attempts by courts to arrive at this unifying principle. Interpreting the vague and messy doctrine in light of this “cheaper cost-effective producer” principle thus helps make damages law more coherent.

Chiang, Tun-Jen, The Information-Forcing Dilemma in Damages Law (August 24, 2016).