Haim Abraham, ‘Tort Liability for Belligerent Wrongs’

Most legal systems deny civilians a right to compensation for losses they sustain during belligerent activities. Arguments for recognising such a right are usually divorced, to various degrees, from the moral and legal underpinnings of the notion of inflicting a wrongful loss under either international humanitarian law or domestic tort law. My aim in this article is to advance a novel account of states’ tortious liability for belligerent wrongdoing, drawing on both international humanitarian law and corrective justice approaches to domestic tort law. Structuring my account on both frameworks, I argue that some of the losses that states inflict during war are private law wrongs that establish a claim of compensation in tort. Only in cases where the in bello principles are observed can losses to person and property be justified and non-wrongful. Otherwise, they constitute wrongs, which those who inflict them have duties of corrective justice to repair.

Haim Abraham, Tort Liability for Belligerent Wrongs, Oxford Journal of Legal Studies, https://doi.org/10.1093/ojls/gqz025. Published: 19 July 2019.

Steve Hedley, ‘The Unacknowledged Revolution in Liability for Negligence’

Wide availability of insurance today makes nonsense of most of tort’s traditional justifications. No longer can it punish or deter wrongs, or deal even-handedly between claimant and defendant: the defendant simply drops out of the picture in favour of their employer or insurer. Tort therefore merely compensates, though theorists are reluctant to concede this. Modern theoretical accounts emphasise deterrence, personal responsibility and corrective justice – all of which are important goals, yet none of which has much to do with tort’s bureaucratic reality. But tort is not so easy to uproot, and the interest groups which can speak most authoritatively have too much to gain from its operations to permit substantial reform. For theorists, therefore, the justification of tort is an important problem with no plausible solution: it is an itch which constantly irritates, but which we cannot properly scratch.

Hedley, Steve, The Unacknowledged Revolution in Liability for Negligence (November 25, 2016) in Sarah Worthington, Andrew Robertson and Graham Virgo (eds), Revolution and Evolution in Private Law (Hart Publishing, 2018).

Mark Geistfeld. ‘The Law and Economics of Tort Liability for Human Rights Violations in Global Supply Chains’

The human rights of foreign workers in global supply chains are routinely violated, yet the problem so far has largely evaded a legal solution. Economic analysis shows why domestic tort liability can partially address this problem. Many consumers in developed countries have a lower willingness-to-pay for products produced by global supply chains that systemically subject foreign workers to egregiously dangerous working conditions in gross violation of their human rights. This attribute of consumer demand provides a basis for subjecting the domestic chain leader to domestic tort liability for the bodily injuries suffered by these foreign workers, including those employed by independent suppliers. Chain leaders, like other product sellers, are obligated to warn about foreseeable safety risks that are not known by consumers and would be material to their decision about whether to purchase or use a product. The tort duty also requires sellers to instruct consumers about the ways in which the purchase or use of the product might foreseeably harm third parties. A domestic seller that is the chain leader of a global supply chain would breach this duty by not warning domestic consumers that the product is produced by foreign workers who are systemically subjected to working conditions that are so unsafe as to amount to a gross violation of their human rights. Because the purchase of the product foreseeably exposes foreign workers to this ongoing risk of physical harm, they are protected by the tort duty and can recover for its breach. Causation can be established by the logic of the breached tort duty. If consumers had been warned that the product is produced in such a systemically unsafe work environment, a substantial number of them would not have purchased it–they would instead have purchased the same product at the higher price necessary to protect the foreign workers from these ongoing safety violations. By distorting consumer demand in this manner, the domestic product seller’s failure to warn domestic consumers of these human rights violations in the global supply chain proximately caused injury to these foreign workers, entitling them to compensation. By remedying these human rights violations, domestic chain leaders would satisfy the reasonable expectations of domestic consumers who have altruistic preferences to rescue foreign workers from extreme dangers within the production process. Tort law cannot redress the full range of human rights violations in global supply chains, but consumer demand provides a sound basis for tort liability that addresses a limited, though important component of the problem.

Geistfeld, Mark, The Law and Economics of Tort Liability for Human Rights Violations in Global Supply Chains (July 1, 2019). 10(2) Journal of European Tort Law 1-36, DOI: 10.1515/jetl-2019-0108 (forthcoming); NYU Law and Economics Research Paper No 19-22.

Jonathan Gilligan, ‘Carrots and Sticks in Private Climate Governance’

When public governance fails to address important environmental threats – such as climate change – private governance by firms, not-for-profits, individuals, and households can produce significant reductions in greenhouse gas emissions. Private governance can take the form of either a carrot or a stick, using incentives or punishments. Shareholder activism as a form of private governance of corporations has largely been confrontational, leading most climate-related actions to fail. This Article examines the potential for private governance to take a more collaborative approach and to frame shareholder engagement with management in terms of opportunity. It also examines private governance successes at reducing household emissions and finds that these too emphasize making it attractive and convenient for households to act.

Gilligan, Jonathan M, Carrots and Sticks in Private Climate Governance (June 11, 2018) 6 Texas A&M Law Review, 179 (2018).

Chamberlain, Simpson and Smith, ‘When Should Casinos Owe a Duty of Care Toward Their Patrons?’

With the release of the Ontario Court of Appeal’s decision in Paton Estate, the possibility was left open for a casino to be found to owe a duty of care to patrons who gamble excessively. This article explores the circumstances under which the Anns/Cooper framework could be applied to find that such a duty exists. Specifically, where the gambler is a member of a casino’s customer loyalty program, thereby imputing knowledge of extreme gambling behaviour on the casino, and where the casino has no reason to believe the patron’s losses are sustainable, a duty of care should be imposed. Liability should follow in cases where the casino knowingly contributed to or deliberately ignored these losses.

Chamberlain, E, Simpson, R, and Smith, G (2019), When Should Casinos Owe a Duty of Care Toward Their Patrons?, Alberta Law Review, 56(4), 963. https://doi.org/10.29173/alr2542.

Zamir and Ayres, ‘Mandatory Rules’

Market failures and other concerns may call for regulation. For decades, market regulation has focused on disclosure duties, and in recent years much attention has been given to nudges. However, mounting evidence suggests that disclosure duties are largely ineffective, and there are increasing doubts about the effectiveness of nudges, as well. In response, some conclude that regulation should be abandoned altogether, while others conclude that there is a need for more serious and systematic consideration of the use of mandatory regulation of the content of transactions. This Article focuses on such measures.

While much has been written about the design of default rules, disclosures, and nudges, relatively little scholarly attention has been given to the questions of when to deploy and how to design mandatory rules. To fill this gap, the Article first offers a typology of procedural and substantive mandatory rules, and their underlying rationales. It then provides an overview of the arguments for and against the use of mandatory rules, and maps their current use. Next, the Article offers a systematic analysis of ten choices involved in the design of mandatory rules, concerning who imposes the mandate, the scope of mandate, the possible interaction with procedural mandatory rule, and the enforcement of the mandate. This discussion yields new insights. Among other things, once it is realized that the choice is not dichotomous – ie substantive mandatory rules, yes or no – but rather covers a huge variety of such rules which differ in numerous respects, blanket opposition to mandatory rules ceases to be tenable. Thus, the inquiry into the question of how to regulate the content of transactions sheds new light on the question of whether to do so.

Zamir, Eyal and Ayres, Ian, Mandatory Rules (July 15, 2019).

Bridget Crawford, ‘Magical Thinking and Trusts’

At a time of monumental economic inequality in the United States, wealthy individuals and their tax-motivated behavior have come under significant scrutiny from all corners. In 2019, the Supreme Court issued its first major ruling in over sixty years on the state income taxation of trusts. In North Carolina Department of Revenue v Kimberley Rice Kaestner 1992 Family Trust, the Court declined to close what some critics consider to be a major loophole that benefits trusts that wealthy individuals create for family members. This Article makes two principal claims – one interpretative and the other normative. The Article explains why the Court’s decision in Kaestner Trust is correct as a matter of law. Just as trusts themselves are type of magical thinking – legal fictions made real by law – so, too, is the hope that the judicial branch can play an active role in limiting the use of trusts by the wealthy. Because judges cannot disregard centuries of trust jurisprudence, critics of family trusts should instead direct their attention to the substantive law of trusts.

Through the prism of a reimagined legal landscape for trusts – by engaging in a different exercise in magical thinking – one can differentiate those aspects of family trusts that serve salutary legal or social purposes from those that serve primarily to preserve and protect wealth. This analysis has important implications for the larger cultural conversation about trusts. Examining how trusts operate and considering what limitations, if any, a just society might impose on them opens the way for identifying allies in the effort to narrow the wealth gap. Reducing wealth inequality is crucial so that all people will have some means of pursuing their personal ideals of social, political and economic fulfillment.

Crawford, Bridget J, Magical Thinking and Trusts (July 20, 2019). Seton Hall Law Review, forthcoming.

John Newman, ‘Attention and the Law’

Human attention has become one of the most scarce, and therefore most valuable, resources in modern economies. Yet current legal doctrine and discourse pay far too little attention to attention. As a result, different bodies of law have evolved in scattershot fashion, developing formal rules that render them inconsistent with one another. Worse yet, a number of fields – including contract, antitrust, property, and privacy law – exhibit internal inconsistencies and coverage gaps. These shortcomings manifest in a variety of ways, across a diverse array of institutional actors and stakeholders: courts have issued nonsensical and conflicting opinions, agencies have misdirected resources and overlooked vast swaths of marketplace activity and societal-welfare harms, and legal theorists have left vital questions unanswered.

This Article describes the problematic current state of affairs and the urgent need for reform. It undertakes the foundational task of constructing a robust model of attention expenditure, attention depletion, and attention exchange. Drawing on these insights, the Article addresses several particularly salient normative ramifications for legal regimes and discourse. It proposes heightened antitrust oversight in attention markets, ‘price’ caps and Pigouvian taxes on attention consumption, and the development of property rights in attention. It concludes with a broad call to action: legal institutions and actors must begin paying attention to attention.

Newman, John M, Attention and the Law (July 21, 2019).

Emily Kadens, ‘The Dark Side of Reputation’

Reputation is the foundation of theories of private ordering. These theories contend that commercial actors will act honestly because if they do not, they will get a bad reputation and others will not want to do business with them in the future. But economists and scholars of networks increasingly realize that reputation has its defects. Mixed in with trustworthy and useful reputation information on which commerce of all sorts relies is inaccurate, distorted, misguided, or outright fraudulent information. Much of the existing literature about reputation’s flaws focuses on unintentional distortions caused by biases, the requirements of social niceties, and the dearth of fully representative information. This Article, by contrast, approaches the problem of the distortion of reputation from the dark side. It uses a rich set of sixteenth- and seventeenth-century English court cases and merchant correspondence to examine how the deliberate manipulation of reputation, and, importantly, people’s failure to verify the gossip and rumors creating such reputation, enabled fraud. It turns out that reputation was ‘a complex process’, even in interconnected early modern markets in which merchants did business face-to-face and participated in active gossip networks. Even being caught, tried, and found guilty of a serious fraud did not necessarily undermine one’s business and perceived trustworthiness in these networks, which raises questions about how much the merchants depended upon reputation when making decisions about whom to trust.

Kadens, Emily, The Dark Side of Reputation (June 20, 2019). Cardozo Law Review, volume 40, no 5, 2019.

Daniel Gervais, ‘Improper Appropriation’

The traditional (Arnstein) test for copyright infringement is satisfied when the owner of a valid copyright establishes unauthorized copying by the defendant. To demonstrate unauthorized copying, one of the major tests is that the plaintiff must first show that her work was actually copied; second, she must establish substantial similarity and/or that the copying amounts to an improper or unlawful appropriation. The second prong is satisfied when (i) protected expression in the earlier work was copied and (ii) the amount of the copyrighted work that is copied must be more than de minimis. This Article examines, first, how impropriety has been applied in copyright infringement cases, and, second, whether the test could (doctrinally) and should (normatively) perform additional work as we move ever more into an era of massive creative reuse of existing works, whether as appropriation art, user-generated content or otherwise. The Article suggests that the notion of propriety should play an enhanced role, especially in cases of reuse of pre-existing copyrighted works.

Gervais, Daniel J, Improper Appropriation (March 28, 2019). Lewis and Clark Law Review, volume 23, no 2, 2019.