Arthur Laby, ‘Book Review: Philosophical Foundations of Fiduciary Law

This book review examines Philosophical Foundations of Fiduciary Law, edited by Professors Andrew S Gold and Paul B Miller, a 2015 addition to Oxford’s Philosophical Foundations of Law series. In recent years, fiduciary law has received increasing attention from courts and legal scholars as a field of private law; fiduciary principles have been applied to public institutions and public officials as well. In this context, Professors Gold and Miller assembled an impressive collection of twenty papers from a variety of scholars with differing areas of expertise. The contributors also vary geographically, which leads to diversity in approach. This review discusses some of the key chapters and then offers a critique, namely that nearly all of the contributors adopt a theoretical frame for the fiduciary obligation that is open to doubt. The frame is that fiduciary relationships arise when one party has discretionary authority over the assets or affairs of another. The review discusses the discretionary authority approach, explores its defects, and explains why the defects call into question what has become an important theory of fiduciary duties. Notwithstanding this critique, anyone interested in fiduciary relationships and fiduciary law will benefit greatly from this body of work.

Laby, Arthur B, Book Review: Philosophical Foundations of Fiduciary Law (December 16, 2015). Law and Philosophy, vol 35, no 1, 2016.

Natasa Glisic, ‘Expanding the Slayer Rule in Florida: Why Elder Abuse Should Trigger Disinheritance’

… This comment explains the impact that expanding the Slayer Rule will have on reducing the elder-abuse epidemic by supplementing the current elder-abuse statutes. Society and the legislature agree that a person should not benefit from his wrongdoing, so there is no reason to not expand the Slayer Rule in Florida at this time. Elder-abuse perpetrators are continuously reaping the benefits of their wrongdoing by inheriting from those they have abused. Part I of this comment begins by looking at the current elder population and elder abuse types and trends. Part II examines Florida’s elder-abuse statutes and the reasons they are not very effective. Part III glances at the history of the Slayer Rule and Florida’s implementation of it. Part IV assesses the states that have already expanded their Slayer Rule to cover elder abuse; and Part V proposes a plan to expand Florida’s Slayer Rule …

Natasa Glisic, ‘Expanding the Slayer Rule in Florida: Why Elder Abuse Should Trigger Disinheritance’, Barry Law Review : volume 22 : issue 1, article 6 (2017).

‘Exposing the Praxis of Comparative Law for What It Is’

Ronald J Krotoszynski, Jr, Privacy Revisited: A Global Perspective on the Right to Be Left Alone (2016). I liked Privacy Revisited, not the least because Ronald Krotoszynski’s book – both explicitly and implicitly – lays bare and grapples with comparative law’s thorniest methodological problems. It is inspiring to see a colleague struggling so honestly and openly with these issues. This might sound like curious praise … (more)

[Russell Miller, JOTWELL, 21 July]

Phillip Buckley, ‘Barriers to Justice, Limits to Deterrence: Tort Law Theory and State Approaches to Shielding School Districts and Their Employees from Liability for Negligent Supervision’

Despite its importance, the law of tort and negligence in the context of American public schools is poorly understood and relatively understudied. Through the lens of tort law theory, this Article examines the various legal frameworks that govern the tort of negligent supervision in four states: Arkansas, Illinois, Colorado, and Maine. In these four states, various statutes serve to shield public school districts and their employees from liability for harms experienced by students under their supervision. This Article argues that the frameworks in these states fundamentally undermine the two primary purposes of tort law: corrective justice and deterrence. This Article then draws on tort law theory to provide suggestions for how legislators could revise the law in these states to strike a better balance between the goals of tort law and the public policy justifications for limiting the liability of districts and employees.

Phillip Buckley, Barriers to Justice, Limits to Deterrence: Tort Law Theory and State Approaches to Shielding School Districts and Their Employees from Liability for Negligent Supervision, Loyola University Chicago Law Journal 48:1015 (2017).

Markus Dubber, ‘Legal History As Legal Scholarship: Doctrinalism, Interdisciplinarity, and Critical Analysis of Law’

Legal history is having a methodological moment. So is law (and, as it turns out, history as well). And not just in one country or legal system but across the common law/civil law divide. In this essay I try to capture some aspects of this methodological moment – or moments – and then to add some reflections of my own that locate legal history within the enterprise of legal scholarship. More specifically, I will outline an approach to legal history that regards historical analysis as one mode of critical analysis of law, along with other modes of ‘interdisciplinary’ analysis (economical, philosophical, sociological, literary, etc) and ‘doctrinal’ analysis. In this way, legal history plays a key role in the general effort to move beyond the long-standing and rhetorically useful, but ultimately unproductive, distinction between ‘modern’ and ‘traditional’ legal scholarship, and that between ‘common law’ and ‘civil law’ scholarship besides. According to this view of legal history, it is a mode of jurisprudence (in fact, we might call it New Historical Jurisprudence) rather than a sub-specialty of law or a form of applied history.

Dubber, Markus D, Legal History As Legal Scholarship: Doctrinalism, Interdisciplinarity, and Critical Analysis of Law (July 13, 2017). Oxford Handbook of Historical Legal Research, 2016.

Alexander Boni-Saenz, ‘Distributive Justice and Donative Intent’

The inheritance system is beset by formalism. Probate courts reject wills on technicalities and refuse to correct obvious drafting mistakes by testators. These doctrines lead to donative errors, or outcomes that are not in line with the decedent’s donative intent. While scholars and reformers have critiqued the intent-defeating effects of formalism in the past, none have examined the resulting distribution of donative errors and connected it to broader social and economic inequalities. Drawing on egalitarian theories of distributive justice, this Article develops a novel critique of formalism in the inheritance law context. The central normative claim is that formalistic wills doctrines should be reformed because they create unjustified inequalities in the distribution of donative errors. In other words, probate formalism harms those who attempt to engage in estate planning without specialized legal knowledge or the economic resources to hire an attorney. By highlighting these distributive concerns, this Article reorients inheritance law scholarship to the needs of the middle class and crystallizes distributive arguments for reformers of the probate system.

Boni-Saenz, Alexander A, Distributive Justice and Donative Intent (July 11, 2017). UCLA Law Review, forthcoming.

Call for Papers: Re-imagining Land Law: Birmingham Law School, 26 September 2017, 10am-5pm

It is a truth universally acknowledged that land law is dry, boring and to be overcome rather than studied. And yet despite such low expectations land law provides one of the clearest opportunities to consider the cultural and political context of legal regulation and to develop an insight and criticality about the basic principles of these legal systems in students … (more)

Givati and Kaplan, ‘Over-Reliance under Contractual Disgorgement’

A well-known result in economic analysis of contract law is that expectation damages lead to over-reliance by the non-breaching party. Recently, the contractual disgorgement remedy has attracted much attention from scholars, yet no attempt has been made to analyze reliance investment under this remedy. In this article, we develop a model showing that under disgorgement a problem arises that is the mirror image of the problem that arises under expectation damages. While expectation damages lead to over-reliance by the non-breaching party, the disgorgement remedy leadsto over-reliance by the breaching party. Therefore, the choice between these two contractual remedies shoulddepend on which over-reliance problem is more costly. We also highlight other factors that can guide the choice between these two remedies.

Yehonatan Givati and Yotam Kaplan, Over-Reliance under Contractual Disgorgement, American Law and Economics Review. DOI: Published: 19 July 2017.

‘What is the literal meaning of Article 82(1) GDPR in each of the EU’s 24 official languages?’

“I’m trying to work out what Article 82(1) of the General Data Protection Regulation (Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC) says and means in each of the 24 official languages of the EU institutions, and I’d be very grateful for your help …” (more)

[Eoin O’Dell, Cearta, 18 July]

David Salmons, ‘Claims Against Third-Party Recipients Of Trust Property’

This article argues that claims to recover trust property from third parties arise in response to a trustee’s duty to preserve identifiable property, and that unjust enrichment is incompatible with such claims. First, unjust enrichment can only assist with the recovery of abstract wealth and so it does not assist in the recovery of specific property. Second, it is difficult to identify a convincing justification for introducing unjust enrichment. Third, it will work to the detriment of innocent recipients. The article goes on to show how Re Diplock supports this analysis, by demonstrating that no duty of preservation had been breached and that a proprietary claim should not have been available in that case. The simple conclusion is that claims to recover specific property and claims for unjust enrichment should be seen as mutually exclusive.

David Salmons, Claims Against Third-Party Recipients Of Trust Property, Cambridge Law Journal, Volume 76, Issue 2, July 2017, 399-429.