‘Exposing the underbelly of mass torts litigation’

“On Monday, Harris County Judge Jeff Shadwick of Houston agreed to stay most discovery in a Vietnamese seafood industry worker’s fraud and conspiracy case against two noted Texas plaintiffs’ lawyers, Robert Hilliard of Hilliard Munoz Gonzales and John Cracken of the Cracken Law Firm. That’s a shame. The worker, represented by the Tammy Tran Law Firm, alleges that Hilliard and Cracken secretly put up a combined $10 million to fund another Texas plaintiffs’ lawyer, Mikal Watts, when Watts hired investigators to drum up client leads after the 2010 BP Deepwater Horizon oil spill …” (more)

[Alison Frankel, Reuters, 24 May]

Edwards and Simester, ‘What’s Public About Crime?’

It is often claimed that the fact that some wrongs are public is a fact that is important to our thinking about permissible criminalisation. We argue that it is not. Some say: what gives us reason to criminalise wrongs – when we have such a reason – is the fact that those wrongs are public. Others say: the fact that a wrong is public is a necessary condition of there being reason to criminalise that wrong, or of its permissible criminalisation. What we should make of these statements depends on what is meant by a public wrong. If the claim that a wrong is public is simply the conclusion of a sound argument that there is reason to criminalise the wrong, or that the wrong is permissibly criminalised, the above statements are true, but trivially so. If the claim that a wrong is public is a premise in an argument that there is reason to criminalise the wrong, or that the wrong is permissibly criminalised, the above statements, we argue, are false. We conclude that it would be better, when we think about permissible criminalisation, to do without the idea of a public wrong.

James Edwards and Andrew Simester, What’s Public About Crime?. Oxford Journal of Legal Studies (2016) doi: 10.1093/ojls/gqw010. First published online: May 24, 2016.

Postdoctoral Research Fellowship: Comparative Unjust Enrichment: McGill University – Faculty of Law

The Paul-André Crépeau Centre for Private and Comparative Law intends to appoint a Postdoctoral Research Fellow with effect from August 2016 or other agreed date. The position is funded by an Insight Grant from the Social Sciences and Humanities Research Council of Canada. The principal investigator is Professor Lionel Smith, researcher at the Crépeau Centre, and the team is composed of colleagues from McGill’s Faculty of Law and beyond. The position is for one year, with the possibility of renewal for a second year … (more)

Dasuni Wijayasriwardena, ‘Consent in Online Contracts – Mindless or Mindful?’

In a day and age where consumers carry out more and more of their contractual transactions online, it must be queried as to whether they sacrifice their understanding of the contractual process in pursuit of the inherent advantages of speed and efficiency in online contracting. In other words, do consumers truly understand the terms and conditions associated with online contracts? For example, does ticking a box marked ‘I agree’ truly amount to contractual assent and are such methods capable of ascertaining actual contractual intention?

Classical contract theory speaks of the necessity of a ‘consensus ad idem’ [meeting of minds] to form a contract and this theory has evolved over time into its present incarnation of ‘reasonable terms with reasonable notice’ in standardized term contracts. But does this objective concept of consent truly reflect the contractual mindset of the online consumer?

This study aims to evaluate the current nature of consent in online consumer contracts and consider the feasibility of introducing a more onerous standard of informed consent into the online contracting process. To this end, the standard of informed consent utilised in the fields of medicine and data protection will be evaluated and its advantages and disadvantages will be assessed against the current objective standard of consent found in online contracts. Finally this study will aim to ascertain whether the imposition of a requirement of informed consent into online consumer contracts is practically possible and whether it actually assists the consumer in understanding the online contracting process.

Wijayasriwardena, Dasuni, Consent in Online Contracts – Mindless or Mindful? (May 24, 2016). Queen Mary School of Law Legal Studies Research Paper No 2/2016.

‘Tort Law in the Laboratory’

Theodore Eisenberg and Christoph Engel, Unpacking Negligence Liability: Experimentally Testing the Governance Effect, 13 Journal of Empirical Legal Studies 116 (2016), available at SSRN. Empirical study of the law is important, particularly for tort law. Fundamental components of the tort system are a ‘black box’, which largely explains why the field is riven by theoretical disagreement over the purpose of tort law. The claim that tort law efficiently reduces accident costs, for example, critically depends on the extent to which the threat of tort liability deters risky actors from behaving inefficiently. The available data on accidents, however, do not directly measure the relationship, no doubt because the injury rate is affected by a large number of other interrelated factors such as changes in wealth and technology that are extraordinarily hard to disentangle, making it extremely difficult to identify the impact that tort liability has had on actual accident rates. To isolate the influence of particular factors such as the threat of tort liability, empirical study must instead turn to the laboratory, where researchers can conduct experiments that are designed to tease out the role of the varied factors that plausibly explain the accident rate – an excellent example of which is provided by Theodore Eisenberg and Christoph Engel in their article, ‘Unpacking Negligence Liability: Experimentally Testing the Governance Effect’ … (more)

[Mark Geistfeld, JOTWELL, 24 May]

Hayner and Weisbach, ‘Two Theories of Responsibility for Past Emissions of Carbon Dioxide’

We consider the claim that individuals or nations who emitted carbon dioxide in the past should be held responsible for those emissions. We examine two theories of responsibility for past emissions that are often conflated: (i) that emissions in the past by individuals in one nation have wrongfully harmed, or will wrongfully harm, individuals in other nations, and (ii) that individuals or nations who emitted in the past used more than their fair share of the limited ability of the atmosphere to absorb carbon dioxide. These two theories have distinct philosophical bases. A theory of responsibility for harm caused to others is based on conventional theories of corrective justice or efficiency, such as the Polluter Pays Principal. The difficulty with these theories is measuring relative harm. There are few estimates of the harms from the 1°C of temperature change experienced so far from past emissions because it is difficult to distinguish the resulting harms from normal variations in the climate. The second theory, a theory of responsibility for excess use, would require a level of compensation several orders of magnitude larger than a theory based on harm. Responsibility for excess use, however, is more difficult to ground in widely-accepted theories of justice. It is, we argue, a theory of equal ownership of all limited resources which few theories of justice would support.

Hayner, Michelle and Weisbach, David A, Two Theories of Responsibility for Past Emissions of Carbon Dioxide (May 23, 2016).

‘Smart Contracts: the Next Frontier?’

“Before email (we are reliably informed), contracts would be posted, received, marked-up, re-posted and disappear for days until arriving back covered in further manuscript in a different coloured pen. Nowadays, we live in the age of emails, attachments, and the ability to instantly share comments. Here we ask: are smart contracts poised to be the next frontier in the life of a lawyer? …” (more)

[Andy Robinson and Tom Hingley, Business Law Blog, 23 May]

Neil Partington, ‘Sports coaching and the law of negligence: implications for coaching practice’

The ordinary principles of the law of negligence are applicable in the context of sport, including claims brought against volunteer and professional coaches. Adopting the perspective of the coach, this article intends to raise awareness of the emerging intersection between the law of negligence and sports coaching, by utilising an interdisciplinary analysis designed to better safeguard and reassure coaches mindful of legal liability. Detailed scrutiny of two cases concerning alleged negligent coaching, with complementary discussion of some of the ethical dilemmas facing modern coaches, reinforces the legal duty and obligation of all coaches to adopt objectively reasonable and justifiable coaching practices when interacting with athletes. Problematically, since research suggests that some coaching practice may be underpinned by ‘entrenched legitimacy’ and ‘uncritical inertia’, it is argued that coach education and training should place a greater emphasis on developing a coach’s awareness and understanding of the evolving legal context in which they discharge the duty of care incumbent upon them.

Neil Partington, Sports coaching and the law of negligence: implications for coaching practice. Sports Coaching Review. DOI: 10.1080/21640629.2016.1180860. Published online: 19 May 2016.

Yale-Humboldt Consumer Law Lecture, Humboldt University Berlin, 6 June 2016

“On June 6, 2016, the Yale-Humboldt Consumer Law Lecture will take place for the third time at Humboldt-University Berlin. For this year’s event on Monday, 6 June 2016, we are privileged to welcome Professor Richard Brooks (Yale Law School/Columbia Law School), Professor Henry Hansmann (Yale Law School) and Professor Roberta Romano (Yale Law School) as speakers. The Yale-Humboldt Consumer Law Lecture aims at encouraging the exchange between American and European lawyers in the field of Consumer Law …” (more)

Chin, Rabinowitz and Quinn, ‘The Presumption of Resulting Trust and Beneficiary Designations: What’s Intention Got to Do with It?’

When opening an RRSP or RRIF, investors typically designate a beneficiary. We expect that, when making this choice, most investors intend that their designated beneficiary will indeed benefit from the investment on their death. And further, if there is a dispute between the designated beneficiary and the investor’s estate, we expect investors intend that their choice of beneficiary will prevail. Surprisingly, this is not the case in many provincial appellate courts, which in fact favour the estate in such disputes. More specifically, most Canadian courts apply the presumption of resulting trust to beneficiary designations: they assume, absent other evidence, that the designated beneficiary holds the proceeds of the RRSP or RRIF in trust for the deceased investor’s estate. Only Saskatchewan has taken a contrary position. The Alberta Court of Queen’s Bench in Morrison v Morrison recently weighed both options and endorsed the approach that applies the presumption of resulting trust.

In the present article, we analyze the doctrine of resulting trust, its rationale as presented by several leading cases, and empirical evidence evaluating the intentions of Canadian investors. We conclude that applying the presumption of resulting trust to beneficiary designations betrays both the theory and purpose of the presumption. It also runs counter to the intentions of most Canadians and creates uncertainties in millions of beneficiary designations. Finally, we present several solutions for bringing the law in line with the intentions of investors, and indeed common sense.

Chin, Jason Michael and Rabinowitz, Archie and Quinn, Aoife, The Presumption of Resulting Trust and Beneficiary Designations: What’s Intention Got to Do with It? (May 15, 2016). Alberta Law Review, Forthcoming.