McCannon, Asaad and Wilson, ‘Contracts and Trust’

Social preferences and third-party enforcement of formal contracts are two mechanisms that facilitate performance of an agreement. The standard argument is that formal contracting substitutes when social preferences are lacking. We explore the hypothesis that social preferences and contract enforcement are complements. We measure social preferences from a Trust Game and use it is an explanatory variable in a contract game. We find that both increased contract enforcement and high trusting preferences lead to enhanced rates of contract formation and larger investments. There is an interaction effect where trusting individuals make larger investment agreements, specifically when enforcement is greater. Thus, contracts and social preferences complement one another.

McCannon, Bryan C and Asaad, Colleen Tokar and Wilson, Mark, Contracts and Trust (July 2, 2015).

Rustad and Kulevska, ‘Reconceptualizing the Right to be Forgotten to Enable Transatlantic Data Flow’


… This Article examines the implications of the Google Spain case as well as the full-blown impact of the proposed GDPR that is estimated to go into effect in the European Union in 2017. The central problem with the right to be forgotten as conceptualized by the CJEU and the Commission is that the expansiveness of the right threatens to cannibalize free expression. Thus, this Article calls for a shrinking of the right to be forgotten to appropriately balance the right of data subjects to control personal information about themselves with free expression and the public interest in preserving history. We propose that the EU Commission operationalize free expression by narrowing the right to be forgotten for private persons, public officials, and public figures. Private persons will have the right to delete links to their own postings and repostings by third parties. They will have a right to delete links to postings created by third parties upon proof that the information serves no legitimate purpose other than to embarrass or extort payment from the data subject. Public officials and public figures will have a right to remove links to their own postings and re-postings by third parties, but not postings about them by third parties, unless the third party was acting with actual malice and the posting does not implicate the public’s right to know. In addition, all right to be forgotten requests will be subject to a general exemption for the public’s right to know … (more)

Michael L Rustad and Sanna Kulevska, ‘Reconceptualizing the right to be forgotten to enable transatlantic data flow’. Harvard Journal of Law and Technology, Volume 28, Number 2 (Spring 2015).

Eric Descheemaeker, ‘Mapping Defamation Defences’

The general neglect of tort defences is most significant in defamation actions. This paper attempts to reduce to a few guiding principles the numerous, and apparently unrelated, doctrines recognised as defences by the law of defamation. Defining the cause of action as an injury to the claimant’s reputation, it argues that they fall into three classes: (i) defences which exclude unlawfulness because the injury was inflicted in pursuance of a right or liberty of the defendant; (ii) defences which exclude blameworthiness because the defendant was not at fault for causing the injury; (iii) defences which relieve the defendant of liability despite the injury being both non iure and negligent: this group, not being underpinned by recognised principles, deserves particular scrutiny. The rule of repetition should be qualified by recognition of a defence of ‘warranted republication’; the remainder should be abolished, being an anachronistic hangover from the old requirement of malice.

Eric Descheemaeker, Mapping Defamation Defences. Modern Law Review, Volume 78, Issue 4, pages 641–671, July 2015.

‘What’s Missing in New Zealand?’

David Enoch, Tort Liability and Taking Responsibility in Philosophical Foundations of the Law of Torts (John Oberdiek ed, 2014). ‘What’s missing in New Zealand?’ That’s the question David Enoch poses in his thought-provoking essay, Tort Liability and Taking Responsibility. As every tort scholar knows, New Zealand has abandoned tort law, at least for injuries caused by accidents. Instead of filing a tort suit, a person injured in an accident files a claim with the Accident Compensation Corporation, which quickly determines whether she suffered a qualifying injury and, if so, provides compensation for it. The money paid out is funded through levies on risk-generating activities. So the New Zealand scheme provides compensation and (at least some) deterrence. It also puts the costs of accidents on the people who risk causing them. And it does all that at a lower cost than maintaining a system of private lawsuits, like tort. That sounds pretty good to Enoch — so good, in fact, that he wonders what is to be said for tort law in face of the New Zealand alternative … (more)

[Scott Hershovitz, JOTWELL, 1 July]

Dagan and Dorfman, ‘The Human Right to Private Property’

For private property to be legitimately recognized as a universal human right, its meaning should pass the test of self-imposability by an end. In this Essay we argue, negatively, that the prevailing (libertarian) understanding of private property cannot plausibly face this demanding standard and, affirmatively, develop a liberal conception which has a much better prospect of facing property’s justificatory challenge. Private property, on our account, is an empowering device, which is crucial both to people’s personal autonomy (understood in terms of self-determination) and to their relational equality (understood in terms of reciprocal respect and recognition among persons). The liberal conception of the human right to property has both vertical and horizontal significance — it implies respect from both the public authority and other individuals — which means that it is thoroughly political but not necessarily statist.

Our account generates important implications, both domestic and transnational ones. Domestically it implies that whereas some property rights should be subject to strong constitutional protection, state law should facilitate other types of private and non-private property institutions, and these property institutions may well be subject to nonowners claims to access and, more broadly, to being treated respectfully. Furthermore, our conception of the human right to property requires that everyone must have the unusual authority typical to full-blown private ownership. Transnationally, our analysis highlights a freestanding dimension of relational justice, which is relevant across borders even given that our distributive obligations are statist. This injunction of relational justice in transnational interactions questions the adequacy of the current state of the law, according to which these interactions are mainly governed by choice of law rules that conceptualize them as wholly subsumed under the capacities of the parties as citizens of their respective polities.

Dagan, Hanoch and Dorfman, Avihay, The Human Right to Private Property (June 29, 2015).

Kretschmer, Derclaye, Favale and Watt, ‘The Relationship between Copyright and Contract Law’

Contracts lie at the heart of the regulatory system governing the creation and dissemination of cultural products in two respects: (1) The exclusive rights provided by copyright law only turn into financial reward, and thus incentives to creators, through a contract with a third party to exploit protected material. (2) From a user perspective purchases of protected material may take the form of a licensing contract, governing behaviour after the initial transaction.

Thus, a review of the relationship between copyright and contract law has to address both supply- and demand-side issues. On the supply side, policy concerns include whether copyright law delivers the often stated aim of securing the financial independence of creators. Particularly acute are the complaints by both creators and producers that they fail to benefit from the exponential increase in the availability of copyright materials on the Internet. On the demand side, the issue of copyright exceptions and their policy justification has become central to a number of reviews and consultations dealing with digital content. Are exceptions based on user needs or market failure? Do exceptions require financial compensation? Can exceptions be contracted out by licence agreements?

This report (i) reviews economic theory of contracts, value chains and transaction costs, (ii) identifies a comprehensive range of regulatory options relating to creator and user contracts, using an international comparative approach, (iii) surveys the empirical evidence on the effects of regulatory intervention, and (iv) where no evidence is available, extrapolates predicted effects from theory.

Kretschmer, Martin and Derclaye, Estelle and Favale, Marcella and Watt, Richard, The Relationship between Copyright and Contract Law (2010). M Kretschmer, E Derclaye, M Favale, R Watt, The Relationship between Copyright and Contract Law: A Review commissioned by the UK Strategic Advisory Board for Intellectual Property Policy (SABIP), 2010.

Geoffrey Palmer, ‘The Law Reform Enterprise: Evaluating the Past and Chartering the Future’

This article reviews the origins of the Law Commissions Act 1965 (UK) and analyses how successful the Commissions have been. While the performance of the Commissions is found to be creditable, the article argues that after 50 years the experience with the Commissions has not matched the original vision. Codification was one of the original aims but has not been achieved. The explanation for failing to reform the law as envisaged lies in the control over legislation exerted by the Executive and Parliament. New methods are suggested for designing and processing legislation, methods that follow the processes developed by Law Commissions in the Commonwealth. Good governance and the rule of law require that legislation be made in a more transparent, systematic and rigorous way that ensures high quality, durable law. That can be accomplished only by parliamentary reform.

Palmer QC, Sir Geoffrey, The Law Reform Enterprise: Evaluating the Past and Chartering the Future. (2015) 131 Law Quarterly Review 402.

‘Exploring the Expressive Dimension of Inheritance Law’

Deborah S Gordon, Letters Non-Testamentary, 62 University of Kansas Law Review 585 (2014). We often get so caught up in the nooks and crannies of small corners of the doctrinal universe, examining tiny subsections of the Uniform Probate Code or the Uniform Trust Code with microscopic scrutiny, that we often forget about the big picture in our field. Deborah Gordon takes us back to that macro level in her thoughtful article, Letters Non-Testamentary. Like Daphna Hacker’s Soulless Wills, 35 Law & Social Inquiry 957 (2010), this article reminds us about the expressive dimension of inheritance law …” (more)

[Paula Monopoli, JOTWELL, 30 June]

‘How Should We Understand Private Law Concepts?’

“Given the recent blog debate about the distinctiveness of private law, I would like to raise a separate but related issue. Often, when we talk about what private law is, we are concerned with what separates private law from other fields – how do we distinguish private law from public law? But there is another way people talk about what private law is. We may seek to understand what private law is, in contrast to what private law does …” (more)

[Andrew Gold, New Private Law, 30 June]

‘Equity and Efficiency in Rule Design’

Zachary D Liscow, Reducing Inequality on the Cheap: When Legal Rule Design Should Incorporate Equity as Well as Efficiency, 127 Yale Law Journal 2478 (2014). Great arguments aren’t always right, but they should be bold, persuasive, and force the scholarly community to respond by testing the arguments’ logic and limitations. In recent years, there are few arguments that have been more generative of thoughtful scholarship than Kaplow and Shavell’s claim that income redistribution should be done solely through the system of taxes and transfers and that legal rules should be chosen solely for their efficiency properties. This conclusion is instinctively repugnant to many scholars outside of the law and economics tradition, and surprising to many within it. Yet, first rank economists that they are, Kaplow and Shavell’s logic, at least under the assumptions of the model they use to make their argument, is unassailable …” (more)

[Andrew Hayashi, JOTWELL, 29 June]