This is the latest in our Private Law in Conversation series. Professor Jane Stapleton will be speaking about her forthcoming paper, ‘Causal Relation in the Law of Obligations’, in discussion with Dr Sandy Steel from the University of Oxford and Dr Luke Fenton-Glynn from the Philosophy at UCL. It will take place at Somerset House on Monday 15 December, 5:30-7:00pm.
Modern companies increasingly use standard form agreements, such as arbitration and non-compete agreements, to “contractualize” discrete aspects of their workers’ obligations. Frequently such agreements provided to the worker after an initial oral agreement of employment has been reached, what the article refers to as “cubewrap” contracting practices. Courts and scholars have yet to develop a consistent contractual theory of the enforceability of these documents. In contrast, consumer contracts have been standardized for decades, and the problem of “terms in the box” contracts, in which key terms are similarly delayed, has been extensively debated. This article draws insights from the “terms in the box” literature to suggest a possible framework for judicial and legislative responses to the rise of “cubewrap” contracts.
Arnow-Richman, Rachel S, Cubewrap Contracts: The Rise of Delayed Term, Standard Form Employment Agreements (November 21, 2014). Arizona Law Review, Vol 49, No 637, 2007.
“Friend of the blog Jeff Sovern, and his co-authors are creating quite a stir with their article that has been topping the charts on SSRN, ‘Whimsy Little Contracts’ with Unexpected Consequences: An Empirical Analysis of Consumer Understanding of Arbitration Agreements. You can follow the discussion in the blogosphere at these sites …” (more)
[Jeremy Telman, ContractsProf Blog, 24 November]
Stewart E Sterk and Melanie B Leslie, Accidental Inheritance: Retirement Accounts and the Hidden Law of Succession, 89 New York University Law Review 165 (2014). Articles routinely appear that serve up a simple, everyday scenario that has potential to morph into a terribly complex legal situation and in the process, twist legal doctrines pretzel-like to reach the preferred result. We read them, digest them for the nugget to divulge in class, and file them away to cite in a later article … (more)
[Anne-Marie Rhodes, JOTWELL, 24 November]
Notwithstanding deep points of disagreement, there is a general — albeit largely implicit — consensus among theorists of the rule of law around what we call the public law presumption: the view that the rule of law is essentially a public law doctrine. We see this view expressed in influential accounts of the rule of law including the work of Dicey, Hayek, Fuller, and Raz. The goal of this book is to challenge the public law presumption. The chapters in this collection all consider the idea that the rule of law concerns the nature of law generally and the conditions under which any relationship — between citizens as well as between citizens and the state — becomes subject to law. They address two major questions. The first question is whether our understanding of the rule of law is enriched by considering how and to what degree it is expressed or realized in private law. For example, many of the chapters address the ways in which the private law secures rule of law values such as non-arbitrariness and guidance. The second question is whether our understanding of the private law is enriched by adding the principles of the rule of law to the traditional list of core private law concepts. For example, many of the chapters show how private law concerns are usefully illuminated through rule of law themes, including strict liability, limitation periods, equity, and ‘boilerplate’. This introduction introduces these themes and the chapters of this volume.
Austin, Lisa M and Klimchuk, Dennis, Private Law and the Rule of Law: Introduction (2014). Lisa M Austin and Dennis Klimchuk (eds) Private Law and the Rule of Law (Oxford University Press 2014).
The law should not allow revenge porn in the name of the First Amendment, just as it should not allow private citizens to purchase AK-47’s in the name of the Second Amendment. Citizens can abuse fundamental rights just as governments can infringe them. At some point, courts have to acknowledge that the First Amendment was not intended to give people a fundamental right to trash an individual’s reputation while seeking cover under the self-serving blanket of opinion and taste. It is one thing to stroll into a courthouse with a shirt that says Fuck the Draft, but quite another to calls someone a Nazi War Criminal. Statements like this poison the marketplace of ideas with the vitriol of immodest jackasses and can, in some circumstances, cause reputational harm.
For too long, courts and commentators have reacted in knee-jerk fashion to any attempts to regulate or provide remedies for speech that causes severe and lasting injury. At the same time, however, the courts have founds ways, such as through the “secondary effects” doctrine, to uphold statutes that, as a practical matter, restrict speech. The courts need not go through such legal gymnastics to restrict in one breath what should be regulated in the next.
Justice Anthony Kennedy has stated that “[t]he remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth”. Truth is not considered a remedy when courts classify a statement as pure opinion, and pure opinions involving private issues and citizens should not receive the First Amendment’s blessing. Simply put, where truth cannot provide a remedy, the law should.
Lamparello, Adam, The Case for Defamatory Opinion (November 21, 2014).
This article addresses a still unsolved puzzle in private law regarding the proper explanation of cases in which courts make substantial awards of damages to claimants whose rights have been infringed, but who appear to have suffered no factual loss in consequence of the infringement. The paradigm examples tend to involve awards of ‘user’, license fee or ‘hypothetical bargain’ damages in cases involving interference with property rights. It suggests that existing explanations of such cases are all unsatisfactory in one or another respect and posits a new and potentially more powerful explanatory thesis, drawing on Hohfeld. Such awards, it argues, compensate right-holders for the loss of legal powers associated with their primary claim-rights — in particular, the loss of powers they are accorded by the law to ‘prevent’ the infringement of certain types of primary claim right ex ante. Legal powers are thus to be regarded as assets or amenities, the loss of which is amenable to monetary compensation.
Kit Barker, ‘Damages Without Loss’: Can Hohfeld Help?, Oxford Journal of Legal Studies (Winter 2014) 34(4): 631-658, doi: 10.1093/ojls/gqu012.
Our aim in this article is to provide a counterbalance to the substantial body of academic opinion supportive of the decision in the medical non-disclosure case of Chester v Afshar  UKHL 41,  1 AC 134, while at the same time identifying some misconceptions that have arisen about the case. Our critique is consistent with the reasoning of the High Court of Australia in its recent decision in Wallace v Kam  HCA 19, (2013) 87 ALJR 648. The article is divided into three sections. In the first section, we argue that the decision in Chester was a departure from orthodox negligence principles. In the second section, we critically examine the autonomy-based justification the majority in Chester gave for departing from those principles. And in the third section we consider a number of alternative ways in which protection could be given to the autonomy interests at stake in medical non-disclosure cases. Several more general points relating to the autonomy concept and the scope of liability doctrine in negligence law emerge from our critique. Our analysis also suggests that negligence law is ill-suited to the task of providing an appropriate legal solution to the problem of medical non-disclosure.
Tamsyn Clark and Donal Nolan, A Critique of Chester v Afshar. Oxford Journal of Legal Studies (Winter 2014) 34(4): 659-692, doi: 10.1093/ojls/gqu019.
This article critically examines the dominant contractarian theory of the firm, and the extent to which its main descriptive propositions are actually manifested within the UK’s legal framework of corporate governance today. The article’s doctrinal analysis is focussed on those principles and rules that together determine the division of decision-making power at the heart of the corporate structure, especially the longstanding contractual principle that underpins both the practical enforceability and normative character of the corporate constitution. The article highlights how the widespread existence of mandatory rules within the UK corporate governance system represents a major empirical aberration to contractarianism’s flexible, private-ordering paradigm of law. It furthermore demonstrates that, while contractarianism attempts to rationalize mandatory rules as being ultimately consistent with a quasi-contractual theory of rule selection, those explanations are either inappropriate to the UK’s law-making environment or else plagued by inherent and self-defeating contradiction. On this basis, the article concludes that contractarian logic is on its own incapable of legitimizing the core legal features of UK corporate governance, and in particular the controversial normative principle of shareholder exclusivity. It accordingly identifies the need to develop a defensible public policy justification for shareholder exclusivity based on public-democratic, as opposed to private-contractual, rationality.
Marc T Moore, Private Ordering and Public Policy: The Paradoxical Foundations of Corporate Contractarianism. Oxford Journal of Legal Studies (Winter 2014) 34(4): 693-728, doi: 10.1093/ojls/gqu006.
Martha Chamallas, Vicarious Liability in Torts: The Sex Exception, 48 Valparaiso University Law Review 133 (2013), available at SSRN. Martha Chamallas’s Monsanto Lecture, Vicarious Liability in Torts: The Sex Exception, is timely and important, inviting renewed scholarly attention to the oft-neglected topic of vicarious liability. Since the 1990s, courts have faced a steady stream of suits brought against schools, hospitals, religious institutions, and other entities for sexual abuse committed by employees. In addressing these suits, Chamallas argues, courts have adopted an unjustifiably narrow approach to vicarious liability … (more)
[John Goldberg, JOTWELL, 21 November]