Shawn Bayern, ‘Dynamic Common Law and Technological Change: The Classification of Bitcoin’

Most legal analysis of Bitcoin has addressed public-law and regulatory matters, such as taxation, securities regulation, and money laundering. This essay considers some questions that Bitcoin raises from a private-law perspective, and it aims to show that technological innovation may highlight problems with conceptualistic, classical rules of private law.

Shawn Bayern, ‘Dynamic Common Law and Technological Change: The Classification of Bitcoin’ 71 Washington and Lee Law Review Online 22 (2014).

Call for Papers: Foundations of Normativity Workshop, University of Edinburgh, 13-14 March 2015

The 2015 Edinburgh Foundations of Normativity Workshop will be held at the University of Edinburgh on 13th and 14th March, 2015.  We invite submissions of abstracts of original papers on moral, legal, or epistemic normativity (or related topics).  Anyone (students, professional academics, etc) may submit an abstract. We aim to invite the authors of two of these papers to speak at the workshop. Workshop papers will be circulated in advance; authors will need to submit a final version by 28th February, 2015.  We will be able to provide some travel support for the authors of papers accepted for presentation. Submissions should consist of an 1,000-word abstract, prepared for blind review, and should be emailed before 1st December, 2014 … (more)

[Foundations of Normativity]

Bar-Gill and Ben-Shahar, ‘Exit from Contract’

Exit from contract is one of the most powerful consumer protection devices, freeing consumers from bad deals and keeping businesses honest. Yet consumers often choose transactions with lock-in provisions, trading off exit rights for other perks. This article examines the costs and benefits of free exit, as compared to the lock-in alternative. It argues that present regulation of exit penalties is poorly tailored to address concerns about lock-in, particularly in light of increasingly ubiquitous market-based solutions. The article also calls (regulatory) attention to loyalty rewards, which are shown to be as powerful as exit penalties, and equally detrimental.

Oren Bar-Gill and Omri Ben-Shahar, Exit from Contract. Journal of Legal Analysis (2014) 6 (1): 151-183, doi: 10.1093/jla/lau003. First published online: July 11, 2014.

Jorge Luis Fabra Zamora, ‘Filosofía de la Responsabilidad Extracontractual: Un Llamado al Debate’

Recientemente se ha comenzado a hablar con fuerza de la “filosofía de la responsabilidad extracontractual” en Latinoamérica. La publicación de varias compilaciones de artículos, la traducción de uno de los textos fundacionales del área, y la publicación del primer libro con una contribución original al debate en español han hecho que este estudio filosófico se consolide un cuerpo académico por mérito propio. Sin embargo, a pesar de estos logros, la idea de una “filosofía de la responsabilidad extracontractual” puede sonar extraña al jurista práctico. Como señala Zipursky, desde la perspectiva de los jueces o abogados, la responsabilidad extracontractual …

Jorge Luis Fabra Zamora, ‘Filosofía de la Responsabilidad Extracontractual: Un Llamado al Debate’ – Enciclopedia de Filosofía y Teoría del Derecho, vol. 3, pp. 1-85 (2013).

Andrew Botterell, Review of Weinrib’s Corrective Justice

“Ernest Weinrib’s important and welcome Corrective Justice extends and refines ideas and arguments previously presented in his ground-breaking The Idea of Private Law (Cambridge, Massachusetts: Harvard University Press, 1995) — which, happily, has been re-issued in a second edition by Oxford University Press. Corrective Justice collects nine papers, some of which have been previously published, and many of which have been substantially reworked since their initial appearance; it also includes an illuminating introduction and conclusion. Among the topics discussed in Corrective Justice are …” (more)

Andrew Botterell, Mind (2014), doi: 10.1093/mind/fzu119. First published online: September 22, 2014.

Jane Baron, ‘Rescuing the Bundle-of-Rights Metaphor in Property Law’

… this Article argues that the bundle-of-rights conceptualization remains useful both descriptively and normatively. First, the bundle-of-rights conceptualization produces more precise specification of the legal relations of parties in both simple and complex property arrangements. Second, it clarifies the normative choices that underlie decisions about property. Third, it focuses attention on the quality of the relationships that property constructs. Finally, bundle-of-rights analysis generally forces information forward. Because the information produced by the granular analysis of property bundles is useful, the bundle-of-rights metaphor should not be displaced or abandoned. Indeed, the complexity of contemporary property issues — and in particular their growing connection to the alternative legal fields of privacy and intellectual property — makes the bundle-of-rights conceptualization all the more fruitful.

Jane B Baron, ‘Rescuing the Bundle-of-Rights Metaphor in Property Law’, 82 University of Cincinnati Law Review (2014)

Teri Baxter, ‘Tort Liability for Parents Who Choose Not to Vaccinate Their Children and Whose Unvaccinated Children Infect Others’

In the past several years the United States has experienced outbreaks of diseases that had been completely or nearly eliminated in past decades. Among the diseases that have reappeared and sickened hundreds of children are pertussis (also known as whooping cough) and measles. In most cases the outbreaks have been traced to unvaccinated individuals who contracted the diseases abroad in countries with higher infection and lower immunization rates. While the source of an outbreak may originate abroad, the spread of the diseases can usually be traced to American children whose parents have chosen not to have them immunized against these diseases. The unvaccinated children have fallen sick and, in many cases, have infected other children who were either too young to have received immunizations against the disease or who contracted the disease despite having been immunized. There are many reasons why a parent may choose not to vaccinate her child: …

Teri Dobbins Baxter, ‘Tort Liability for Parents Who Choose Not to Vaccinate Their Children and Whose Unvaccinated Children Infect Others’, 82 University of Cincinnati Law Review (2014).

Samuel Walker, ‘Applying the actual/potential person distinction to reproductive torts’

As technology has advanced, the level of control that can be exercised over the reproductive process has increased. These advances have resulted in a number of claims in tort law relating to pregnancy and birth. The three reproductive torts considered here are ‘wrongful conception’, ‘wrongful birth’ and ‘wrongful life’. This article will consider the theoretical underpinnings upon which these torts rest and will suggest that the potential/actual person distinction is crucial to these reproductive torts because potential persons should not be able to make claims in tort based on alternative conditions that could never have been. This is because actions (or omissions) prior to birth determine the preconditions for existence. Thus, only actual persons (ie those who exist at the time of the action or omission) should be able to bring claims in tort. The analysis will conclude by arguing that no child should be permitted to bring a claim under any form of reproductive tort. The term reproductive torts originates with Nicolette Priaulx’s work and encompasses all three terms: wrongful life, wrongful birth and wrongful conception. While these are distinct terms and all fall within negligence for the purposes of this analysis ‘reproductive torts’ is a useful term to identify these particular claims.

Samuel EP Walker, Applying the actual/potential person distinction to reproductive torts. Medical Law International, March-June, 2014, vol 14, no 1-2, 3-21.

Joanna Manning, ‘Plus ça change, plus c’est la même chose: Negligence and treatment injury in New Zealand’s accident compensation scheme’

In 2005, cover for treatment injury replaced medical misadventure in New Zealand’s accident compensation scheme. The mischief was to remove the need for a claimant to prove a health practitioner’s or organization’s negligence to establish cover. The aim was to provide greater fairness for claimants, faster claims handling and a higher acceptance rate. A disturbing aspect of the case law interpreting the treatment injury criteria is that notions of negligence have crept back into the interpretation of these criteria and are becoming entrenched. The original purpose of the reform is in danger of miscarrying, unless these misguided interpretations are corrected by superior appellate courts. This is not simply a matter of being faithful to the intention of the reform but is necessary to maximize provider trust and cooperation in the claims process in the interests of claimants. A way to do this is to incorporate the concept of ‘preventability’ as defined in the Swedish, Danish and Finnish patient insurance schemes. It may prove impossible to eradicate fault altogether from treatment injury, but vigilance is required so that negligence is kept to a minimum. Negligence concepts might continue to play a role in the interpretation of the statutory exclusion from cover of personal injury that is an ‘ordinary consequence’ of treatment. Another is in relation to Accident Compensation Corporation’s (ACC’s) mandatory duty to report a risk of harm to the public. Any enthusiasm on behalf of ACC and the courts to ‘bring back negligence’ is ironically absent from the latter aspect of the scheme.

Joanna M Manning, Plus ça change, plus c’est la même chose: Negligence and treatment injury in New Zealand’s accident compensation scheme. Medical Law International, March-June 2014, vol 14, no 1-2, 22-51.

Ben-Shahar & Schneider Symposium, Finale: The Authors Respond

“After reading our book and the blogs about it, you are surely in danger of hearing more than you want to know and even more surely apprehensive about a response in which we battle and bicker point by point. Our critics have described our thesis accurately: More Than You Wanted To Know does argue that mandated disclosure is the most common and least successful form of regulation today, that it cannot be fixed, and that it does more harm than good. But our critics puzzle us in some basic ways we will briefly explore …” (more)

[Ben-Shahar and Schneider, ContractsProf Blog, 29 September]