Just published: Barker, Grantham and Swain, ‘Law of Misstatements – 50 Years on from Hedley Byrne v Heller

2013 was the 50th anniversary of the House of Lords’ landmark decision in Hedley Byrne v Heller. This international collection of essays brings together leading experts from five of the most important jurisdictions in which the case has been received (the United Kingdom, the United States, New Zealand, Canada and Australia) to reappraise its implications from a number of complementary perspectives – historical, theoretical, conceptual, doctrinal and comparative. It explores modern developments in the law of misstatement in each of the jurisdictions; examines the case’s profound effects on the conceptual apparatus of the law of negligence more generally; explores the intersections between misstatement liabilities in contract, tort, equity and under statutory consumer protection provisions and critically assesses the ways in which advisor liabilities have come to be limited and distributed under systems of ‘joint and several’ and ‘proportionate’ liability respectively. Inspired by Hedley Byrne, the purpose of the collection is to reflect on the case’s echoes, effects and analogues throughout the private law and to provide a platform for thinking about the ways in which liabilities for misstatement and pure economic loss should be modelled in the modern day.

Law of Misstatements – 50 Years on from Hedley Byrne v Heller, edited by Kit Barker, Ross Grantham and Warren Swain. Hart Studies in Private Law, hardback, August 2015, 9781849468633, £65.00.

Nicola Brutti, ‘Legal Narratives and Compensation Trends in Tort Law: The Case of Public Apology’

The metanarrations about legal concern reached an increasing role in criticizing overcompensation cases. Litigation-adversarial system is perceived as too expensive for private and public finances. Someone underlined that emphasis on communication and voluntariness renders mediation more likely to resolve disputes.

Today public apology is playing a positive role in policies centered on alternative informal dispute resolution, due to a restorative justice model. A public gesture of apology by the wrongdoer could help to prevent litigation especially in moral or punitive damages cases. The article suggests that a different narrative of facts by legal means can be achieved.

Different legal meanings of public apology in eastern and western legal traditions are here investigated. According to a comparative analysis, the article focuses on different solutions issued by case law and legal transplants. It points out that the situation is very patchworked, although some jurisdictions have provided a specific legal framework for apologies.

However, its proper legal effects could shift in a wide range of solutions depending on certain circumstances: shaming sanction, mitigating factor on damages assessment, admission against interests, moral redress, self-reputation healing. Some criticisms referred to each specific meaning are here underwrited. In particular, the threat about apologies as metanarrations enforced by Courts concerns: insincerity, rule of law violations, harm to freedom of expression, mediatic manipulation.

Brutti, Nicola, Legal Narratives and Compensation Trends in Tort Law: The Case of Public Apology (April 27, 2012). European Business Law Review [2013] 127-148.

Burrell and Kelly, ‘Parliamentary Rewards And The Evolution Of The Patent System’

This article examines the impact on the patent system of rewards for innovation across the eighteenth and early nineteenth centuries. During this period, Parliament would regularly grant rewards to inventors, with many of these rewards being set out in legislation. This legislation provided Parliament with the opportunity to promote a model of state support for inventors: a model that made public disclosure of the invention a precondition for assistance. This had important implications for patent law, in particular, in helping to develop the role of the patent specification and the doctrine of sufficiency of disclosure. In this way, the reward system helped establish the framework under which the state would provide support for inventors. Simultaneously, however, the reward system created a space in which inventors would have to do more than meet the minimum requirement of public disclosure. Rewards allowed the state to distinguish between different classes of inventor and to make special provision for particularly worthy individuals. In this way, the reward system recognised the contribution of the ‘heroic inventor’, whilst leaving the core of the patent system undisturbed.

Robert Burrell and Catherine Kelly, Parliamentary Rewards And The Evolution Of The Patent System. Cambridge Law Journal. DOI: http://dx.doi.org/10.1017/S0008197315000690. Published online: 27 August 2015.

Guerra and Hlobil, ‘Tailoring Negligence Standards to Accident Records’

Traditional economic models of accident law are static and assume homogeneous individuals under perfect information. This paper relaxes these assumptions and presents a dynamic unilateral accident model in which potential injurers differ in their probability of accident. Information about individual risk-type is hidden from the social planner and from each potential injurer. We ask how negligence standards should be optimally tailored to individual risk-type when this is imperfectly observable. We argue that information about past accident experiences helps to efficiently define negligence standards, narrowing the distance between first-best standards perfectly tailored to individual risk-type and third-best averaged standards. We finally show that negligence standards refined on the basis of past accident experiences and of individual risk-type do not undermine private incentives to undertake due care.

Guerra, Alice and Hlobil, Tobias M, Tailoring Negligence Standards to Accident Records (August 10, 2015).

Just Published: Comparing Tort and Crime – Learning from across and within Legal Systems (Matthew Dyson ed)

The fields of tort and crime have much in common in practice, particularly in how they both try to respond to wrongs and regulate future behaviour. Despite this commonality in fact, fascinating difficulties have hitherto not been resolved about how legal systems co-ordinate (or leave wild) the border between tort and crime. What is the purpose of tort law and criminal law, and how do you tell the difference between them? Do criminal lawyers and civil lawyers reason and argue in the same way? Are the rules on capacity, consent, fault, causation, secondary liability or defences the same in tort as in crime? How do the rules of procedure operate for each area? Are there points of overlap? When, how and why do tort and crime interact? This volume systematically answers these and other questions for eight legal systems: England, France, Germany, Sweden, Spain, Scotland, the Netherlands and Australia.

Comparing Tort and Crime – Learning from across and within Legal Systems. £89.99. Editor: Matthew Dyson. Date Published: July 2015. Format: Hardback. ISBN 9781107080485.

Nancy Kim, ‘Wrap Contracting and the Online Environment: Causes and Cures’

This chapter explores the origins of online contracts and the development of the law in this area. It summarizes and analyzes existing case law governing wrap contracts and makes several proposals.

Kim, Nancy S, Wrap Contracting and the Online Environment: Causes and Cures (August 24, 2015). RESEARCH HANDBOOK ON ELECTRONIC COMMERCE LAW (ed John A Rothchild, Edward Elgar Publishing, 2016, forthcoming).

Bant and Bryan, ‘Fact, Future and Fiction: Risk and Reasonable Reliance in Estoppel’

This paper argues that a common theme underpins the doctrines of estoppel by representation and convention, promissory and proprietary estoppel. In each case, it is the law’s concern to respond appropriately to, and not to reward, undue risk-taking on the part of claimants in a non-contractual context. In doctrinal terms, this concern is mediated through the common requirement that the claimant must have acted in reasonable reliance on an assumption induced by the defendant. This paper concludes that the way remains open for the development of a coherent and unified doctrine of reliance-based estoppel moulded around the requirement of reasonable reliance.

Elise Bant and Michael Bryan, Fact, Future and Fiction: Risk and Reasonable Reliance in Estoppel. Oxford Journal of Legal Studies (Autumn 2015) 35 (3): 427-452, doi: 10.1093/ojls/gqv006.

Benjamin Farrand, ‘Lobbying and Lawmaking in the European Union: The Development of Copyright Law and the Rejection of the Anti-Counterfeiting Trade Agreement’

The purpose of this article is to examine the issue of ‘lobbying’ in the EU legislative process, using an interdisciplinary analysis of the development of copyright laws as a way of explaining why and how some lobbyists are more successful than others in having their preferences taken into account in legislation. As this article will demonstrate, the keys to successful lobbying in this field are information exchange, the ability to frame issues at an early stage in the legislative process (agenda setting) and the political salience of an issue. By assessing not only where legislative initiatives in copyright reform have been successful, such as the passing of the Information Society, Enforcement and Term Extension Directives, but also where legislative initiatives fail, as in the case of ACTA, it will be demonstrated that legislative success is not a simple case of ‘big business getting what it wants’, but of varying levels of political salience. Where the salience of an issue is low and voters consider that issue comparatively unimportant to other issues, industry representatives are able to effectively frame legislative outcomes. Where salience is high, and an issue important to voters, this ability is substantially reduced. By approaching copyright law development in this way, it is possible to reconceptualise the role of lobbying in the EU legislative process.

Benjamin Farrand, Lobbying and Lawmaking in the European Union: The Development of Copyright Law and the Rejection of the Anti-Counterfeiting Trade Agreement. Oxford Journal of Legal Studies (Autumn 2015) 35 (3): 487-514, doi: 10.1093/ojls/gqu028.

David Chavanne, ‘Thinking Like (Law-and-) Economists – Efficient Legal Rules and Moral Intuitions of Fairness’

Using vignettes that are based on seminal cases in law and economics, I find that judicial decisions across different areas of the common law are considered to be fairer when they are more efficient. Vignettes describe legal disputes and require respondents to rate the fairness of a judge’s resolution. Fairness ratings are compared across a lower-efficiency version and a higher-efficiency version of each vignette, with efficiency differences generated by subtle changes in context that are motivated by the economic logic used in the relevant case’s actual judicial opinion. The results suggest that the economic logic that underlies the Coase theorem, the Hand rule and the foreseeability doctrine, and generates prescriptions for efficient use of strict product liability and efficient breach of contract, aligns with everyday intuitions of fairness. The results also identify two areas, fugitive property and punitive damages, where prescriptions for efficiency do not align with perceptions of fairness.

Chavanne, David, Thinking Like (Law-and-) Economists – Efficient Legal Rules and Moral Intuitions of Fairness (August 22, 2015).

Jennifer Drobac, ‘The Myth of “Legal” Consent in a Consumer Culture’

This Essay challenges the legal default of unquestioned human capacity for consent. It posits that legal capacity for consent is not an ‘on/off’ switch. It questions the notion that capacity – our rough filter for the ability to consent – flips on at some relatively arbitrary time that one might, as a matter of tradition, call ‘the age of consent’, and off again with early onset dementia or Alzheimer’s disease. A more nuanced view of consumer capacities rests, in part, on the understanding neuroscience and psychosocial evidence provide. This perspective suggests that we should match our rules and jurisprudential approaches to the variable capacities that we all show in different contexts and stages of life. By highlighting that most negotiating parties, in a given moment or context, may possess rather less than legally presumed capacity to consent, this Essay emphasizes the need for legal reform.

Drobac, Jennifer Ann, The Myth of ‘Legal’ Consent in a Consumer Culture (March 1, 2015). FACETS OF CONSUMERISM IN A GLOBAL ECONOMY (Anand Pawar, ed, Twenty First Century Publications, 2015) (available in India, ISBN no 978-93-85446-27-6).