‘The 2019 Hague Judgments Convention – A Game Changer?’

“The Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters will form the object of a conference (in English) scheduled to take place on 23 April 2020 at the Catholic University of Milan. Speakers include …” (more)

[Thalia Kruger, Conflict of Laws .net, 22 January]

‘Rethinking Uniformity in Statutory Interpretation’

Ryan Doerfler, Can a Statute Have More Than One Meaning?, 94 New York University Law Review 213 (2019). It is a persistent theme in statutory interpretation theory – one shared by textualists, purposivists, and intentionalists alike – that a statutory term must have the same meaning from case to case and from litigant to litigant. The word ‘knowingly’ in the same statute cannot mean one thing as applied to Sally and another as to Jim. To hold otherwise, courts and scholars have agreed, would violate fundamental principles of fairness and stability and upend the rule of law. Yet in a provocative and compelling new article, Can a Statute Have More Than One Meaning?, Ryan Doerfler makes a convincing case for rethinking this conventional view and contemplating just such variability of meaning … (more)

[Anita Krishnakumar, JOTWELL, 22 January]

Brady Williams, ‘Unconscionability as a Sword: The Case for an Affirmative Cause of Action’

Consumers are drowning in a sea of one-sided fine print. To combat contractual overreach, consumers need an arsenal of effective remedies. To that end, the doctrine of unconscionability provides a crucial defense against the inequities of rigid contract enforcement. However, the prevailing view that unconscionability operates merely as a ‘shield’ and not a ‘sword’ leaves countless victims of oppressive contracts unable to assert the doctrine as an affirmative claim. This crippling interpretation betrays unconscionability’s equitable roots and absolves merchants who have already obtained their ill-gotten gains. But this need not be so.

Using California consumer credit law as a backdrop, this Note argues that the doctrine of unconscionability must be recrafted into an offensive sword that provides affirmative relief to victims of unconscionable contracts. While some consumers may already assert unconscionability under California’s Consumers Legal Remedies Act, courts have narrowly construed the Act to exempt many forms of consumer credit. As a result, thousands of debtors have remained powerless to challenge their credit terms as unconscionable unless first sued by a creditor. However, this Note explains how a recent landmark ruling by the California Supreme Court has confirmed a novel legal theory that broadly empowers consumers – including debtors – to assert unconscionability under the State’s Unfair Competition Law. Finally, this Note argues that unconscionability’s historical roots in courts of equity – as well as its treatment by the Uniform Commercial Code and the Restatements – reveal that courts already possess an inherent equitable power to fashion affirmative remedies against unconscionable contracts under the common law, even absent statutory authorization.

Brady Williams, Unconscionability as a Sword: The Case for an Affirmative Cause of Action, 107 California Law Review 2015 (2019).

Tang Hang Wu, ‘Trustees’ investment duties and cryptoassets’

This article considers the legal and practical concerns for trustees regarding cryptocurrencies and other related instruments, which will be referred to as ‘cryptoassets’. It will briefly introduce the various types of cryptoassets and explore the risks involved when trustees decide to (or not to) invest in these instruments. This article provides a framework on how trustees should approach the issue of cryptoassets.

Tang Hang Wu, Trustees’ investment duties and cryptoassets, Trusts and Trustees, https://doi.org/10.1093/tandt/ttz117. Published: 16 January 2020.

‘On the Uniform Construction of Contract Boilerplate’

“Contract language is often recycled. The same words get reused in separate transactions between different parties. Generally speaking, the fact that different parties use the same boilerplate does not entail that those words should receive the same judicial interpretation in each transaction. Parties’ prior dealings, what they said during negotiations, local usages, the structure of the agreement as a whole, and other contextual factors can all affect their objectively reasonable understanding of boilerplate language. The correct interpretation of a contractual writing is therefore in most cases properly understood as a question of fact and ‘does not become imbued with stare decisis effect just because a judge made it’ …” (more)

[Gregory Klass, Oxford Business Law Blog, 22 January]

Colin Scott, ‘Consumer Law, Enforcement and the New Deal for Consumers’

A key trend for consumer law and policy in Europe has been the progressive expansion of consumer rights. It has long been recognized that the vindication of consumer rights is challenging. The expansion of consumer rights from the 1960s was accompanied by the establishment of proactive regulatory agencies whose enforcement powers complement and to some degree displace mechanisms of individual consumer enforcement. In April 2018 the European Commission proposed extensive reforms of consumer law and policy in its New Deal for Consumers, a key component of which is a further significant shift away from judicial enforcement. This trend is balanced by new proposals to enhance opportunities for collective consumer redress. In this article I offer an assessment of where we are today with the varied mechanisms and trends for enforcement of consumer law and where we are heading, not simply with the New Deal for Consumers, but also with related policies such as the Digital Single Market Strategy. Overall the pattern suggests a number of key trends including: a shift from reactive to more proactive modes of enforcement; from individuated to more collective modes; more evidence of meta-regulatory approaches, and; greater cooperation in enforcement (both public private and transnational). These trends are not necessarily consistent as between each other, generating potential for tensions between approaches and underlying assumptions about both purposes and effectiveness in consumer law and policy.

Colin Scott, Consumer Law, Enforcement and the New Deal for Consumers (2019) 27 European Review of Private Law, issue 6, pp 1279–1296.

Thomas Verheyen, ‘Modern Theories of Product Warnings and European Product Liability Law’

Scholars inside and outside Europe have recently argued that product liability law should recognise the sheer complexity of designing an adequate warning. In the US, for instance, it has been suggested that a plaintiff bringing a claim based on a defective warning should be required to prove which reasonable alternative warning would have prevented her from suffering harm. While much can be said in favour of a more refined approach to product warnings, these proposals are incompatible with many key characteristics of positive European product liability law as construed by the Court of Justice of the European Union. These scholars’ recommendations invite us to reconsider some of the features of European product liability law and decide upon a direction for the future.

Verheyen, Thomas, Modern Theories of Product Warnings and European Product Liability Law (December 13, 2019). Utrecht Law Review, volume 15, no 3, 44-56, 2019.

Colin Mayer, ‘Ownership, Agency and Trusteeship’

This article argues that the two dominant concepts of theory of the firm and the bases of modern management education, business practice, and public policy towards the firm, namely shareholder primacy and agency theory, are at best incomplete and at worst erroneous. They omit what was a substantial basis of discourse on the company in the first half of the 19th century, namely the notion of trusteeship. The article argues that reintroducing trusteeship addresses many of the current debates around capitalism, explains the bewildering patterns of ownership observed around the world, accounts for the recent failures of capitalism, and is a potential source of enhancing firm performance in the future.

Mayer, Colin, Ownership, Agency and Trusteeship (December 11, 2019). European Corporate Governance Institute – Law Working Paper No 488/2020.

Ahson Azmat, ‘Tort’s Indifference: Conformity, Compliance, and Civil Recourse’

Leading accounts of tort law split cleanly into two seams. Some trace its foundations to a deontic form of morality; others to an instrumental, policy-oriented system of efficient loss allocation. An increasingly prominent alternative to both seams, Civil Recourse Theory (CRT) resists this binary by arguing that tort comprises a basic legal category, and that its directives constitute reasons for action with robust normative force. Using the familiar question whether tort’s directives are guidance rules or liability rules as a lens, or prism, this essay shows how considerations of practical reasoning undermine one of CRT’s core commitments. If tort directives exert robust normative force, we must account for its grounds—for where it comes from, and why it obtains. CRT tries to do so by co-opting HLA Hart’s notion of the internal point of view, but this leveraging strategy cannot succeed: while the internal point of view sees legal directives as guides to action, tort law merely demands conformity. To be guided by a directive is to comply with it, not conform to it, so tort’s structure blocks the shortcut to normativity CRT attempts to navigate. Given the fine-grained distinctions the theory makes, and with the connection between its claims and tort’s requirements thus severed, CRT faces a dilemma: it’s either unresponsive to tort’s normative grounds, or it’s inattentive to tort’s extensional structure.

Azmat, Ahson, Tort’s Indifference: Conformity, Compliance, and Civil Recourse (2019). Journal of Tort Law, 2019.

‘Inaugural Lecture by Alex Mills (UCL): The Privatisation of Private (and) International Law’

Speaker: Professor Alex Mills (Faculty of Laws, UCL). Chair: Professor Campbell McLachlan QC (Victoria University Wellington). Date and time: 6 February 2020, 6:00 pm to 7:00 pm. Location: Bentham House, UCL Laws, London, WC1H 0EG, United Kingdom. Abstract: The boundary between public and private legal relations at the international level has become increasingly fluid … (more)

[Matthias Weller, Conflict of Laws .net, 21 January]