‘Does Tort Law Empower?’

Ori J Herstein, How Tort Law Empowers, 64 University of Toronto Law Journal (2014) (forthcoming), available at SSRN. Ori Herstein’s How Tort Law Empowers takes on the question of whether and how tort law empowers victims. Herstein presents himself as a friendly critic of civil recourse theory, and offers an amendment that he claims makes the theory both more plausible and less interesting. Like many friendly amendments, it is an offer that must be carefully examined before it is accepted. Herstein begins by noting that one of the most important and interesting contributions by civil recourse theory is the idea that tort law empowers tort victims … (more)

[Anthony Sebok, JOTWELL, 19 December]

Just published: Private Law and the Rule of Law (Austin and Klimchuk, eds)

The rule of law is widely perceived to be a public law doctrine, concerned with the way in which governmental authority conforms to the dictates of law. The goal of this book is to challenge this presumption. The chapters in this volume all consider the idea that the rule of law concerns the nature of law generally and the conditions under which any relationship – that among citizens as well as that between citizens and the state – becomes subject to law. Addressing two major questions, they ask if our understanding of the rule of law is enriched by considering how and to what degree it is expressed or realized in private law, and whether our understanding of the private law is enriched by adding the principles of the rule of law to the traditional list of core private law concepts. Bringing together leading philosophers of private and public law, this volume examines key questions in a little-explored field, and will be essential reading for all those interested in the rule of law and in private law theory … (more)

[Amazon, 18 December]

AJ van der Walt, ‘The Modest Systemic Status of Property Rights’

… In this article, I propose to contribute to this debate by advancing the proposition that another way of countering the over-inflated perception of property as a simple message to keep off, in addition to the progressive arguments that highlight its normative features as a diverse and complex set of institutions, would be to argue that the legal protection of property rights in fact plays – and should play – a surprisingly modest systemic role in the law. If property could indeed be explained in a simple rule such as the message that non-owners must keep off, most property disputes could indeed have been adjudicated simply on the basis of enforcing compliance with that rule. Stated differently, if the core of property were a simple keep-off rule, the adjudication of property disputes would have pivoted on the protection of property rights. However, progressive property literature that highlights the complexities and diversity of property doctrines and institutions indicates that the protection of property rights is in fact subject to a wide range of exceptions and qualifications. My aim in this article is to argue that case law illustrates the surprisingly modest systemic purpose that protection of property rights in fact plays, judged against the systemic significance of the exceptions and qualifications. My point is not to argue that property rights are unimportant, but to show that in the larger picture, systemically, the exceptions and qualifications sometimes overshadow the protection of property rights … (more)

AJ van der Walt, ‘The Modest Systemic Status of Property Rights’. 1 Journal of Law, Property, and Society 15 (November 2014).

Gilbar and Miola, ‘One Size Fits All? On Patient Autonomy, Medical Decision-Making, And The Impact Of Culture’

While both medical law and medical ethics have developed in a way that has sought to prioritise patient autonomy, it is less clear whether it has done so in a way that enhances the self-determination of patients from non-western backgrounds. In this article, we consider the desire of some patients from non-western backgrounds for family involvement in decision-making and argue that this desire is not catered for effectively in either medical law or medical ethics. We examine an alternative approach based on relational autonomy that might serve both to allow such patients to exercise their self-determination while still allowing them to include family members in the decision-making process.

Roy Gilbar and José Miola, One Size Fits All? On Patient Autonomy, Medical Decision-Making, And The Impact Of Culture. Medical Law Review (2014), doi: 10.1093/medlaw/fwu032. First published online: December 16, 2014.

‘Mind the Gaps! High Court Confirms Negligence Will Not Protect Economic Interests where Contractual Protection is Available’

“The central issue in Brookfield was one which is especially important given the proliferation of multi-use, multi-storey developments around Australia’s major population centres. This was whether the builder of an apartment complex owes a duty of care in negligence to protect the Owners’ Corporation (as agent for the owners of apartments in the building) from pure economic loss arising from latent defects in the common property of that building where those defects were structural, constituted a danger to persons or property in the vicinity or made the apartments uninhabitable. The High Court found that the builder owed no such duty, reversing the decision of the NSW Court of Appeal …” (more)

[Matthew Bell, Wayne Jocic and Rami Marginean, Opinions on High, 17 December]

Péter Cserne, ‘Freedom of Contract (and Economic Analysis)’

Freedom of contract is a principle of law, expressing three related ideas: parties should be free to choose their contracting partners (‘party freedom’), to agree freely on the terms of their agreement (‘term freedom’) and where agreements have been freely made, parties should be held to their bargains (‘sanctity of contract’). This entry, prepared for an encyclopedia of law and economics (ed Jürgen G Backhaus, Springer) provides an overview of the economic justifications and limitations of this principle.

Cserne, Péter, Freedom of Contract (and Economic Analysis) (December 2014). TILEC Discussion Paper No 2014-049.

Sean Williams, ‘Dead Children: Tort Law and Investments in Child Safety’

Should tort law treat cases of dead children differently than cases of dead adults? A diverse set of research — including bioethics studies, contingent valuation, and analyses of consumer behavior — all suggest that the answer is Yes. That research coalesces around a single pattern: people are willing to invest about twice as many resources in protecting children as they are in protecting adults, even when each are equally vulnerable to the relevant risk. This pattern extends to non-fatal risks as well, even those as mundane as the risk of catching a cold. These investment patterns suggest that, as a prima facie matter, a deterrence-oriented tort system should impose standards of care that are about twice as stringent for children as for adults, and award tort damages that are about twice as high for child victims. These insights — generated by focusing solely on deterrence — remain robust when we instead view tort law through the lenses of corrective justice or civil recourse. Each of these individual justice accounts of tort law is consistent with child exceptionalism, although some require fewer caveats than others. Such child exceptionalism is also consistent with plausible and attractive moral theories despite the fact that it could be framed as a deviation from formal equality. In addition to laying out the empirical and normative cases for heightened standards of care and heightened damages, the Article offers a set of tools that courts and legislatures can use to move tort law toward these goals.

Williams, Sean H, Dead Children: Tort Law and Investments in Child Safety (December 15, 2014).

Claudia Landeo, ‘Law and Economics and Tort Litigation Institutions: Theory and Experiments’

In tort litigation, delayed settlement or impasse imposes high costs on the parties and society. Litigation institutions might influence social welfare by affecting the likelihood of out-of-court settlement and the potential injurers’ investment in product safety. An appropriate design of litigation institutions and tort reform requires good knowledge of the factors that affect litigants’ behavior. The combination of theoretical and experimental law and economics, which represents the cornerstone of the application of the scientific method, might enhance our understanding of the effects of litigation institutions and tort reform on settlement and deterrence.

We evaluate the interaction between theoretical and experimental law and economics in the study of tort litigation institutions. Special attention is devoted to liability, litigation and tort reform institutions, and behavioral factors that might affect impasse. Our analysis suggests a productive interaction between theoretical and experimental law and economics. In particular, findings from experimental economics work on litigation institutions indicate the presence and robustness of cognitive biases, and provide evidence of the effects of litigants’ biased beliefs on the likelihood of impasse. These findings have motivated the construction of new economic models of litigation involving more empirically-relevant assumptions about litigants’ beliefs. As a result of the application of the scientific method, the contributions of law and economics to the design of legal institutions might be strengthened.

Landeo, Claudia M, Law and Economics and Tort Litigation Institutions: Theory and Experiments (December 15, 2014). Kathryn Zeiler and Joshua Teitelbaum (eds), The Research Handbook on Behavioral Law and Economics, Edward Elgar Publishing, Forthcoming.

Block-Lieb and Halliday, ‘Contracts and Private Law in the Emerging Ecology of International Lawmaking’

The creation of global markets rarely proceeds without the creation of institutions to enable and set parameters around global market actors, whether multinational companies, seafaring carriers, international banks or other private global investors. And yet little is known about the institutional matrix of lawmaking organizations on which markets depend. What is known about the proliferation of international institutions to rationalize the legal framework for global trade has prompted socio-legal scholars to question whether this accumulation of organizations creates legal fragmentation (Koskenniemi 2002), complexity (Alter; Kennedy), harmonization or subversion (Schaffer and Pollack 2010; Mallard 2014), the institutionalization of transnational legal orders (Halliday and Shaffer 2015a; Block-Lieb and Halliday 2015), or contestations among their proponents (Halliday and Shaffer 2015b).

This paper provides the long view of a complex of international lawmaking organizations that emerged over 150 years, ultimately to constitute an ecology of international trade lawmaking. Among other goals and practices of these organizations, the formation and evolution of this ecology turned substantially on negotiations and disputes among lawmaking IOs about which of them had the authority to formulate international instruments governing private parties’ contractual practices, a broad terrain of law that is characterized most commonly as international private law (eg, laws governing private contracts and the relationships between private actors as opposed to laws governing the interactions or agreements between states) …

Block-Lieb, Susan and Halliday, Terence C, Contracts and Private Law in the Emerging Ecology of International Lawmaking (December 15, 2014), accepted for inclusion in MAKING GLOBAL MARKETS WORK: CONTRACTS, PRICES AND INSTITUTIONS IN THE LONG TWENTIETH CENTURY (Gregoire Mallard and Jerome Sgard, eds); Fordham Law Legal Studies Research Paper No 2538556.