Gold and Miller, Introduction to Philosophical Foundations of Fiduciary Law

This Introduction to Philosophical Foundations of Fiduciary Law (Andrew S Gold and Paul B Miller eds, Oxford: Oxford University Press, 2014) outlines core questions of fiduciary law theory and provides thematic discussion of the contributions to the volume.

Gold, Andrew S and Miller, Paul B, Introduction to Philosophical Foundations of Fiduciary Law (August 28, 2014). In: Andrew S Gold and Paul B Miller, eds, Philosophical Foundations of Fiduciary Law (Oxford: Oxford University Press, 2014).

John Goldberg, ‘Inexcusable Wrongs’

Tort law has little patience for excuses. Criminal law is more forgiving — it recognizes nominate excuses such as duress and provocation, as well as innominate excuses that temper punishment. Excuses are also commonplace in ordinary morality. Like criminal law and morality, tort law seems concerned with holding persons accountable for their wrongs, and excuses seem to go hand-in-hand with accountability. So why — or in what sense — are torts inexcusable wrongs?

This Article explains how tort law, understood as law that enables victims to hold wrongdoers answerable to them, cogently can refuse to recognize excuses. In doing so, it offers a unified account of many of tort law’s core features, including the objectivity of negligence law’s ordinary care standard, the courts’ insistence on injury as a condition of liability, and the strictness of certain forms of tort liability. More generally, it invites us to broaden our understanding of what it means for law to identify conduct as wrongful, and for law to set up schemes for holding wrongdoers accountable.

Scholars ranging from Holmes to Posner have supposed that, when judges and scholars treat tort as a law for the redress of wrongs, they embrace primitive ideas of vengeance, or empty and sanctimonious notions of morality. This supposition is mistaken. In order to make sense of tort law, one must appreciate that it identifies wrongs and provides rights of action not in the name of vengeance or piousness, but to enable us to hold each other accountable for injuries that we wrongfully inflict on one another.

Goldberg, John C P, Inexcusable Wrongs (August 29, 2014). California Law Review, Vol 103, 2015.

Keren-Paz and El Haj, ‘Liability versus Innovation: The Legal Case for Regenerative Medicine’

Medical innovation occupies a position somewhere between standard practice and clinical research, but innovation is primarily intended to benefit an individual patient where standard treatment fails. Medical innovations in the area of regenerative medicine have the potential to completely transform medical practice but rely upon some major revision to the nature of treatments beyond drug based therapies. There is considerable investment in scientific and clinical research, but further attention could be paid to legal barriers to medical innovation imposed by the threat of medical malpractice.

We survey in this paper the legal framework for making determinations of medical malpractice in general, and highlight the issues specific to innovative treatments. In essence, liability could be imposed for failing to adequately inform the patient about the innovative nature of the suggested therapy, or based on the fact that the risks outweighed the benefits. As for the latter, we examine whether liability is likely to be based merely on deviating from existing practice, or on an examination on the merits of the treatments’ risks and benefits. The facts that some risks are unforeseeable and some benefits are external to the patient complicate negligence determinations. The first fact relates to the problem of judging adverse events in hindsight; the second, to the obligation to make decisions based on the patient’s best interest and avoid conflict of interests.

In addition, we evaluate the relationship between the obligations to secure the patient’s informed consent and to avoid clinical negligence. We identify the need for further research to examine the significance of the putative anti-innovation bias that current liability regime has, and to examine whether a move to strict liability might avoid such bias, while being fair to patients who contribute for the advancement of medical knowledge by participating in innovative therapies.

Keren-Paz, Tsachi and El Haj, Alicia, Liability versus Innovation: The Legal Case for Regenerative Medicine (July 27, 2014). Tissue Engineering, Part A, 2014, DOI: 10.1089/ten.tea.2013.0324.

Richard Wright, ‘Moore on Causation and Responsibility: Metaphysics or Intuition?’

This paper was prepared for a festschrift in honor of Michael Moore to be published by Oxford University Press. Moore’s magnum opus, Causation and Responsibility, amply demonstrates his encyclopedic knowledge of the relevant sources in law and philosophy and his analytical skill. Much can be learned from careful, critical reading, despite repetitive and sometimes inconsistent discussion.

However, I argue, Moore relies too much on intuition – more specifically, his own – in developing his account of causation and its pervasive and (he claims) dominant role in attributions of legal responsibility. Focusing on the NESS account that I have elaborated, he rejects “generalist” accounts of causation, which analyze singular instances of causation as instantiations of causal (natural) laws, instead opting for a “primitivist singularist” account, according to which we simply recognize causation when we see it in each particular instance without any even implicit reference to causal laws or any other “reductionist” test. He erroneously treats the “substantial factor” criterion in the first and second Restatements of Torts (which is properly strongly criticized and rejected in the third Restatement) as being such a primitivist singularist account. In addition, he seeks to replace all of the traditional normative limitations on legal responsibility with a supposed causal analysis, based on the “scalarity” of causation.

Yet, Moore believes, intuitions come into conflict with metaphysics when considering omissions or other absences as causes, which is routinely assumed to be true in law and life but which Moore insists is fundamentally erroneous from a metaphysical standpoint. His insistence on this point, while admirable from an intellectual integrity standpoint, completely undermines the fundamental premise of his book – that causation is the pervasive and dominant determinant of legal responsibility – since omissions/absences are part of every causal chain involving human action and many not involving human action.

In this paper, I defend a specific “generalist” account of causation (the NESS account) and criticize Moore’s primitivist singularist account. Along the way, I address a number of issues regarding causation and legal responsibility, including the metaphysical basis for treating omissions as causes.

Wright, Richard W, Moore on Causation and Responsibility: Metaphysics or Intuition? (May 3, 2014). LEGAL, MORAL, AND METAPHYSICAL TRUTHS: THE PHILOSOPHY OF MICHAEL MOORE (Kimberly Ferzan and Stephen Morse, eds, Oxford University Press, forthcoming 2015).

Oskar Liivak, ‘When Nominal is Reasonable: Damages for the Unpracticed Patent’

To obtain a substantial patent damage award via reasonable royalties, a patentee need not commercialize the patented invention; infringement is all that is needed. This surely incentivizes patenting but it disincentivizes innovation. Why commercialize yourself? The law allows you to wait for others to take the risks, and then you emerge later to lay claim to “in no event less than a reasonable” fraction of other people’s successes. Today, it is rational to be a patent troll rather than an innovator.

This troll enabling interpretation of reasonable royalties is wrong as a matter of patent policy and, surprisingly, it is also wrong as a matter of patent history and statutory interpretation. The creation of reasonable royalties by the courts in the nineteenth century did mark a significant change to patent damages but it was nowhere near as sweeping as today’s interpretation would suggest. Up to the mid-1800s, the existing routes to patent damages were stringent, available only to patentees who had already commercialized their patented invention. Courts developed reasonable royalties for budding innovators who were laying the groundwork for innovation but who could not yet satisfy the existing strict routes to patent damages. Those cases never extended reasonable royalties to those who simply sat on their patents waiting to extract payment from others. Starting in the 1970s, reasonable royalties came unmoored from that foundation. Infringement alone, without any commercialization efforts, now creates a presumption of compensable harm and the near guarantee of a substantial payout. Today’s view of reasonable royalties is unsupported by patent history and it in fact sits in tension if not outright conflict with binding Supreme Court cases. Properly understood, some efforts to commercialize are still a necessary element for substantial reasonable royalties. As a result, nominal damages are reasonable for infringement of an unpracticed patent.

Liivak, Oskar, When Nominal is Reasonable: Damages for the Unpracticed Patent (August 28, 2014).

Peter Kamminga, ‘The Next Level in Contract Design: Incorporating Non-Contractual Mechanisms when Negotiating and Drafting Complex Contracts’

Defense acquisition programs are examples of complex contracts plagued by surging delays and cost overruns. In particular, contract management of defense acquisition programs has been identified as “high risk” – threatening project performance and leading to the Department of Defense (DoD) overpaying for projects. Empirical findings suggest that parties’ contractual behavior – especially the ability to work together cooperatively – is an important success factor. Empirical research also indicates that, in complex projects, such as defense projects, contracts are often experienced as a cause of disruption of cooperation. In addressing this problem, contract literature has mainly focused on how to improve contracts by making them better enforcement mechanisms. This article takes a different approach. It specifically focuses on how and why the contract, as a legal mechanism, may obstruct cooperation between the DoD and contractors. It proposes a new normative framework that includes other variables that influence parties’ contractual behavior, such as social norms and economic rationality, which are frequently ignored in contract design. The main observation this article makes is that tensions can arise between the norms set forth in contracts and other non-legal norms that are particularly problematic in complex contracts such as defense contracts. It explains why these tensions may undermine cooperative behavior between contractors and the DoD and become a source of disappointing acquisition program results. Finally, a framework is provided for identifying these tensions, and design principles are proposed to enhance cooperation by foreseeing and eliminating these tensions when drafting contracts for defense acquisition programs.

Kamminga, Peter, The Next Level in Contract Design: Incorporating Non-Contractual Mechanisms when Negotiating and Drafting Complex Contracts (August 27, 2014).

Degeling and Barker, ‘Private Law and Grave Historical Injustice: The Role of the Common Law’

This paper reintroduces the role of the common law in cases of grave historical injustice. As we conceive it, ‘grave historical injustice’ consists in serious, widespread instances of wrongdoing which, for institutional, social, political or other reasons, has remained unaddressed and un-redressed for long periods of time. Contemporary examples in Australia include the abuse of vulnerable individuals within the Catholic Church and Australian Defence Force and the historic theft of wages from Aboriginal peoples. There are many other examples across societies and nations.

Simone Degeling and Kit Barker, ‘Private Law and Grave Historical Injustice: The Role of the Common Law’ University of New South Wales Faculty of Law Research Series [2014] UNSWLRS 36.

Muireann Quigley, ‘Propertisation and Commercialisation: On Controlling the Uses of Human Biomaterials’

Third parties, such as researchers and biotech companies, can and do legally acquire property rights in biomaterials. They are protected by the law of property in their use of these. Recent legal decisions have seen a move towards the tentative explicit recognition of some property rights in biomaterials vesting in the source of the materials. However, this recognition has not included income rights. This article discusses the interests that parties have in controlling the uses of biomaterials and the commercial interests that stem from those uses. The article argues that concerns regarding the allocation of property rights to the source generally elide property rights in biomaterials with the right to derive income from the transfer of those materials. Propertisation does not analytically entail commercialisation. It is therefore questionable whether it is reasonable to protect third parties’ income rights, while excluding the source of the biomaterials from such protection.

Muireann Quigley, ‘Propertisation and Commercialisation: On Controlling the Uses of Human Biomaterials’. Modern Law Review, Volume 77, Issue 5, pages 677–702, September 2014.

Dan Priel, ‘Tort Law for Cynics’

Tort scholars have in recent years defended a ‘traditional’ or ‘idealist’ view of tort law. In the context of negligence this implies that the holder of a duty of care must make an effort not to violate that duty. Idealists contrast this with a ‘cynical’ view that having a duty of care implies a legal requirement to pay damages for breach of that duty. This article defends the cynical view, arguing that it easily explains doctrines supposedly only explicable from an idealist perspective, and that many aspects of tort law are hard to reconcile with idealism. Empirical constraints often make idealism, even if it were desirable, unattainable, and cynicism is therefore the more honest view. The article argues that idealism is often undesirable, having costs, both pecuniary and non-pecuniary, which are often ignored, and that therefore it is sometimes better if certain torts take place (and are compensated) than if they do not happen.

Dan Priel, ‘Tort Law for Cynics’. Modern Law Review, Volume 77, Issue 5, pages 703–731, September 2014.

Nicholas Petrie, ‘Reforming the Remedy: Getting the Right Remedial Structure to Protect Personal Privacy’

Politicians, journalists and academics have exhausted many hours over the last decade debating the question of whether Australia should have a statutory cause of action for invasion of personal privacy. In the midst of this ongoing debate, a simple question has often been overlooked: what remedies should be available to a person whose privacy been breached? In posing and answering that question, it is argued that a wide range of remedies for intrusions of personal privacy should be available to the courts. Perhaps most controversially, the author asserts that exemplary damages, which aim to punish defendants and deter future breaches of the law, should be available for the most heinous breaches of personal privacy.

Petrie, Nicholas, Reforming the Remedy: Getting the Right Remedial Structure to Protect Personal Privacy (July 2012). Deakin Law Review, Vol 17, No 1, 2012.