Michael Foran, ‘Discrimination as an Individual Wrong’

This article argues that anti-discrimination rights are individual rights to be free from wrongful treatment and do not directly advance group-based interests or prohibit group-based harm. In light of this, a number of recurring accounts of the wrong of discrimination, particularly the wrong of indirect discrimination, are unsustainable. Claims that indirect discrimination is concerned with harm that is done to social groups or that laws prohibiting indirect discrimination seek to reduce or eliminate advantage gaps between social groups must be rejected as inaccurate. While principles of non-discrimination and principles of affirmative action often operate harmoniously to foster respect for the moral equality of persons, they each have a general affinity with distinct ethical traditions: deontology and teleology respectively. As such, we should conclude that indirect discrimination provisions are examples of formal and not substantive equality. Where rights to non-discrimination conflict with telic equality goals, UK law protects the rights of the individual.

Michael P Foran, Discrimination as an Individual Wrong, Oxford Journal of Legal Studies, https://doi.org/10.1093/ojls/gqz026. Published: 22 August 2019.

Shivprasad Swaminathan, ‘Dicey and the Brick Maker: An Unresolved Tension Between the Rational and the Reasonable in Common Law Pedagogy’

In his inaugural address as the Vinerian Professor of English law in 1883, Albert Venn Dicey laid down the vision for a new pedagogy for the common law to replace the ‘unaccountable’ arrangement of apprenticeship that had hitherto served the common law. The latter, he likened to ‘brick making’. At the heart of Dicey’s vision was the idea that the common law be cognized as a system of rules and exceptions – in contrast to the classical common lawyers’ self-understanding which took it to be a practice of reasoning – which could then, like other sciences, be expounded and taught by the newly emerging professoriate. Dicey pitched this as supplementing the ‘brick maker’ with a knowledge of the science underlying his craft. This article argues that Dicey’s rationalist pedagogical vision, however, fundamentally altered the very nature of the common lawyers’ enterprise since it was based on a philosophical model opposed to the one the common lawyers’ traditional self-understanding presupposed. On the rationalist model (which Dicey presupposes), the common law is seen as being comprised of standards – with precedents being seen as rules – which it is the task of legal reasoning to bring to bear upon the case. On the reasonableness model – which is how David Hume, along with the common lawyer, understood the common law – the task of legal reasoning is to have a motivational traction on the community and precedents are rhetorical counters that serve to persuade the interlocutor.

Shivprasad Swaminathan, Dicey and the Brick Maker: An Unresolved Tension Between the Rational and the Reasonable in Common Law Pedagogy, Liverpool Law Review. First Online: 17 August 2019.

Winkelmann, Glazebrook and France, ‘Contractual Interpretation’

“We start with some general points about the interpretation of contracts, before discussing in more detail the methodology of interpretation and, in particular, the modern purposive approach to interpretation with its greater use of extrinsic aids to interpretation. Relevant differences between colloquium jurisdictions are highlighted and similarities to and differences from the position in England and Wales are discussed. We then deal with implied terms, the parol evidence rule and interpretive approaches to certain types of contracts, including oral contracts, consumer contracts (including insurance), online contracts and registered instruments …” (more)

Hon Chief Justice Helen Winkelmann, Hon Justice Glazebrook and Hon Justice Ellen France, ‘Contractual Interpretation’, Asia Pacific Judicial Colloquium, held in Singapore 28–30 May 2019.

Adriano Zambon, ‘Property: A conceptual analysis’

This paper aims to explicate the concept of property, regarded as the minimal sense of the word ‘property’, in ordinary as well as legal language. The main claim is that the concept of property consists in a set of one or more deontic modalities that regulate the relations between persons in connection with one or more goods. The concept of property is then distinguished from differing conceptions of property, and its relations with other legal concepts are analysed. Then, some observations on the criteria for applying the concept and on the transferability of property are presented. Finally, the utility of the knowledge of the concept of property is discussed.

Adriano Zambon, Property: A conceptual analysis, Revus: Journal for Constitutional Theory and Philosophy of Law, online since 12 August 2019, connection on 22 August 2019.

Gregory Keating, ‘Between Absolutism and Efficiency: Reply to Professors Geistfeld, Grady, and Priel’

This paper replies to Professor Geistfeld, Grady, and Priel’s excellent comments on my article ‘Principles of Risk Imposition and the Priority of Avoiding Harm’, 36 Revus: Journal for Constitutional Theory and Philosophy of Law, 7 (2018). Both my article and Professor Geistfeld’s, Grady’s and Priel’s papers a part of the ‘Symposium: Risk Regulation and Tort Law, A discussion with Gregory C. Keating’. This Reply completes the Symposium. It attempts, briefly, to develop two lines of argument. One line attempts to respond to the specific criticism that Professors Geistfeld, Grady, and Priel, make in the Comments. In part, my specific replies seek to show that the safety and feasibility standards are rationally justifiable and genuine alternatives to cost-justification as a standard of precaution. Though I disagree with specific arguments of each of my critics, I believe that other claims they make are true, but do not undermine my arguments. For example, my arguments are compatible with Professor Grady’s correct observation that juries have the authority to reach verdicts inconsistent with the priority of avoiding harm – or any other theory of negligence. The merits of jury adjudication are not settled by any normative theory of reasonable care. I also agree with Professor Priel’s thesis that societies do not prioritize harm prevention. We are, I think, torn between competing moral outlooks and the standards of precaution that express those outlooks. My point is that standards of precaution which prioritize the avoidance of harm are rationally defensible, albeit in non-welfarist terms. I am likewise persuaded that Professor Geistfeld is correct to contend that welfare economics is compatible with non-welfarist normative commitments, but mistaken to think that measures such as willingness-to-pay and willingness-to-accept are the best ways to articulate the concrete implications of non-welfarist principles of precaution.

This Reply leads, however, with a second line of argument. We are all – consequentialists and non-consequentialists, philosophers and economists – imprisoned in the grip of the debate between utilitarianism and its critics that dominated political philosophy in the latter half of the 20th century. Classical utilitarianism fell into disfavor because its commitment to maximizing utility is capable of justifying deprivations of basic rights for a minority whenever such restrictions promoted the greatest net happiness. The cure for this disease lay in making some basic rights ‘absolute’ – in ruling out some trade-offs entirely. Applied to problems of risk imposition, the legacy of this debate is the assumption that we must choose between ‘absolutism’ and ‘efficiency’. Unattractive as ‘efficient’ trade-offs may be, the absolute prohibition of trade-offs is untenable when risks of physical harm are at issue. The safety and feasibility standards must fail because they are unacceptably absolutist. Once we shake ourselves free of this philosophical legacy we can see that this is not the case: these standards are standards for making trade-offs not for forbidding them and that the trade-offs they prescribe are perfectly plausible.

Keating, Gregory C, Between Absolutism and Efficiency: Reply to Professors Geistfeld, Grady, and Priel (August 19, 2019). USC CLASS Research Paper No 19-27; USC Law Legal Studies Paper No 19-27.

For the papers to which this is a reply see here and here.

‘Article on Voice, Strength, and No-Contest Clauses’

“Karen J Sneddon recently published an Article entitled, ‘Voice, Strength, and No-Contest Clauses’, 2019 Wisconsin Law Review 239-268 (2019). Provided below is an abstract of the Article. ‘His will was read, and like almost every other will, gave as much disappointment as pleasure – Jane Austen. The will is a unilateral written disposition of probate property to be effective upon the will-maker’s death. To have any legal effect, however, the will-maker’s family, beneficiaries, and personal representatives, along with the probate court, need to implement the will provisions …'” (more)

[Gerry W Beyer, Wills, Trusts and Estates Prof Blog, 21 August]

Glynn Lunney, ‘A Natural Right to Copy’

In this symposium, we gather to celebrate the work of Wendy Gordon. In this essay, I revisit her article, A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property. In the article, Professor Gordon first used the ‘no-harm’ principle of John Locke to justify copyright as natural right and then used his ‘enough-and-as-good’ proviso to limit that right. Her second step turned natural rights approaches to copyright on its head. Through it, she showed that even if we accept copyright as natural right, that acceptance does not necessarily lead to a copyright of undue breadth or perpetual duration. Rather, even a natural rights framework leads to a copyright regime shorter and narrower than we presently have.

While I agree that copyright should be shorter and narrower, I worry that Professor Gordon conceded too much in her first step. Neither Locke’s reasoning nor Professor Gordon’s reading of it can justify a right to prohibit copying as a matter of natural law. It is not the right to prohibit copying to which we have a natural entitlement. It is the right to copy.

Lunney, Glynn S, A Natural Right to Copy (August 17, 2019).

‘“With great power comes great responsibility” – contributory negligence post-Montgomery

“Regardless of whether one attributes this famous quote to Voltaire or Spider-Man, the sentiment is the same. Power and responsibility should be in equilibrium. More power than responsibility leads to decision-making with little concern for the consequences and more responsibility than power leads to excessive caution. This article argues that there is now a disequilibrium in the NHS, which is the root cause for defensive medical practice and the growing NHS litigation bill …” (more)

[Matthew Fisher, UK Human Rights Blog, 21 August]

Madison Shepley, ‘The Character of the Business: Looking Through “Broken Windows” for Liability in Mass Shootings and Other Third-Party Criminal Acts’

Mass violence and third-party criminal acts are increasing in prevalence, and Washington State’s current prior incidents liability analysis does not fully address public policy concerns of safety. This Comment argues for an expansive standard of the definition of character of the business that incorporates a sociological understanding of the effects of an atmosphere of crime. It provides an overview of the various state analyses for determining liability for third-party criminal conduct and breaks down how states have incorporated the concept of character of the business as a factor in liability analysis, ultimately turning to a discussion of how the implementation of a broken windows interpretation of character of the business, along with some alternatives and additions geared exclusively to Washington, can be used to expand the current business owner liability for third-party criminal conduct in Washington and help to reduce third-party criminal conduct.

Madison Shepley, The Character of the Business: Looking Through ‘Broken Windows’ for Liability in Mass Shootings and Other Third-Party Criminal Acts, 42 Seattle University Law Review 1531 (2018).

John Murphy, ‘Contemporary Tort Theory and Tort Law’s Evolution’

Although grand, explanatory theories of tort law come apart from one another in many ways, they also have a fair amount in common. One core claim found in the work of various Kantian theorists, as well as a number of leading rights theorists, is that tort law develops, incrementally, in such a way as to achieve ever greater coherence (where such coherence is measured according to key tenets of the particular theories). This article takes issue with that claim. It shows, by reference to a host of legal landmarks, that tort law neither does, nor must, develop in this way. A great many important innovations in tort cannot be reconciled with central aspects of the theories in view, but they are easily explained by reference to major changes in material conditions of life, shifts in the ideological Zeitgeist, judicial partiality and juristic influence. As long as such factors are free to exert their influence – and there is nothing to suggest that they are not so free – it is implausible to suggest that tort law will inexorably move towards a state of ever greater coherence.

John Murphy, Contemporary Tort Theory and Tort Law’s Evolution, Canadian Journal of Law and Jurisprudence, volume 32, issue 2 August 2019, pp 413-442. DOI: https://doi.org/10.1017/cjlj.2019.20. Published online by Cambridge University Press: 20 August 2019.