Glenn West, ‘Teaching Contract Drafting through Caselaw – a Syllabus and a Collection of My Musings about Contract Drafting Based upon Recent Cases’

Law Schools are under ever­increasing criticism for their failure to teach lawyers how to actually practice law – particularly on the transactional side of the practice. That criticism is basically a criticism of the caselaw method of teaching law school subjects – a method that relies upon the reading of appellate decisions providing lessons in common law doctrine that are applied to a particular set of facts. While there are plenty of things to criticize in the current law school curriculum, the fundamental benefits of the caselaw method is actually not one of them – even for those who seek to become transactional lawyers rather than litigators. Indeed, to attempt to teach the ‘how’ of contract drafting without a proper grounding in the ‘why’ of contract drafting would be a waste of time. Certainly more practice skills courses taught by those that have actually practiced for a significant period of time would be a good thing – but not at the expense of the basic curriculum taught by the old­fashioned, but effective, caselaw method. Instead, what is needed is a recognition of the value of the caselaw method in actually teaching transactional practice skills as well as common law doctrine, the mastery of which is essential to becoming a good transactional lawyer. What follows, then, is a Syllabus created by the author for a contract drafting course that seeks to balance the teaching of practice skills with the importance of a solid grounding in relevant caselaw; together with a collection of blog postings by the author regarding how various contract provisions in the M&A arena should evolve (but not always have evolved) in response to developments in the caselaw …

West, Glenn D, Teaching Contract Drafting through Caselaw—a Syllabus and a Collection of My Musings about Contract Drafting Based upon Recent Cases (August 29, 2017).

Eric Johnson, ‘Disentangling the Right of Publicity’

Despite the increasing importance attached to the right of publicity, its doctrinal scope has yet to be clearly articulated. The right of publicity supposedly allows a cause of action for the commercial exploitation of a person’s name, voice, or image. The inconvenient reality, however, is that only a tiny fraction of such instances are truly actionable. This Article tackles the mismatch between the blackletter doctrine and the shape of the case law, and it aims to elucidate, in straightforward terms, what the right of publicity actually is.

This Article explains how, in the absence of a clear enunciation of its scope, courts have come to define the right of publicity negatively, through the application of independent defenses based on free speech guarantees and copyright preemption. This inverted doctrinal structure has created a continuing crisis in the right of publicity, leading to unpredictable outcomes and the obstruction of clear thinking about policy concerns.

The trick to making sense of the right of publicity, it turns out, is to understand that the right of publicity is not really one unitary cause of action. Instead, as this Article shows, the right of publicity is best understood as three discrete rights: an endorsement right, a merchandizing entitlement, and a right against virtual impressment. This restructuring provides predictability and removes the need to resort to constitutional doctrines and preemption analysis to resolve everyday cases. The multiple-distinct-rights view may also provide pathways to firmer theoretical groundings and more probing criticisms.

Johnson, Eric E, Disentangling the Right of Publicity (2017). Northwestern University Law Review, volume 111, no 4, 2017.

Stephen Sugarman, ‘Restating the Tort of Battery’

This article offers a bold proposal: eliminate the intentional tort of battery and merge cases of both the negligent and intentional imposition of physical harm into a single new tort. The advantages of a single tort of wrongfully causing physical harm to persons are many. It would a) do away with complex and unneeded doctrinal details now contained within battery law, b) pave the way to a sensible regime of comparative fault for all such physical injuries, c) properly shift the legal focus away from the plaintiff’s conduct and onto the defendant’s, d) eliminate the Restatement’s need to supplement battery law with yet a separate intentional physical harm tort when an injury is intentionally caused but without the contact or other requirements of battery, and e) force courts to decide various collateral issues (like whether punitive damages are available or whether liability insurance coverage is applicable) on their own terms and not by linking them to whether this case involves a battery (and then making exceptions, since it turns out that battery is not a reliable basis for deciding those collateral matters). More broadly, the new tort is intellectually more insightful as it anchors acts that now count as batteries more in their wrongfulness than in their intentionality as battery law does today.

Sugarman, Stephen D, Restating the Tort of Battery (September 19, 2017).

JiangYu Wang, ‘Enforcing Fiduciary Duties as Tort Liability in Chinese Courts’

Fiduciary duties, once an Anglo-American concept, was codified in China’s Company Law in 2005, which made China one of the very few jurisdictions which introduced fiduciary duties through statutory provisions. Between successful or unsuccessful cases of legal transplant, China offers a third possibility on how the transplant of fiduciary duties may work in a civil law jurisdiction. It appears to be a rather simple model: the concept – or name – of fiduciary duties has been used by the courts to apply the doctrine of torts in civil law to the wrongdoings of corporate insiders such as the directors, officers and supervisors. In other words, the codification of fiduciary duties by China’s Company Law offers a room for the courts to use this concept as an authorisation by the law to impost tort liability on corporate wrongdoers, which they were not able to do before the codification. In this sense, the adoption of fiduciary duties in China’s corporate law plays an instrumental role in improving investor protection in China, although the judicial understanding and interpretation of fiduciary duties are probably far different from what the duties are understood in the origin countries.

Wang, JiangYu, Enforcing Fiduciary Duties as Tort Liability in Chinese Courts (August 16, 2017). In R Huang and N Howson (eds), Enforcement of Corporate and Securities Law: China and the World (pp 162-184). Cambridge: Cambridge University Press. doi:10.1017/9781316691397.011.

Čerka, Grigienė and Sirbikytė, ‘Is it possible to grant legal personality to artificial intelligence software systems?’

The purpose of this paper is to determine whether Systems of Artificial Intelligence (SAI) can be deemed subjects of law. This aim is formulated according to the technical capabilities integrated in SAI and the SAI’s ability to interact independently with other legal subjects. SAI features, such as direct connection with intellectual skills, the ability to understand, learn and make autonomous decisions may cause situations where autonomous systems based on AI will make decisions which will be in the best interests of individuals, even though conflicting with the user’s own will.

To consider the possibility of SAI being recognized as possessing legal personality, we analyse the concept and features of SAI and define its operating principles. We give hypothetical examples to demonstrate the necessity of SAIs being recognized as such. The paper undertakes legal personality analysis of SAI performed: (i) using the philosophical and legal concepts of a subject (person); (ii) discussing artificial (unnatural subjects of law) as an alternative to the recognition of legal personality of SAI; (iii) using elements of legal personality set for natural and legal persons.

The analysis leads to the conclusion that the scope of SAI rights and obligations will not necessarily be the same as the scope of rights and obligations of other subjects of law. Thus, SAI could only have rights and obligations that are strictly defined by legislators. This conclusion suggests that the result of this paper may be its use in further research defining the scope of SAI rights and obligations.

Paulius Čerka, Jurgita Grigienė and Gintarė Sirbikytė, ‘Is it possible to grant legal personality to artificial intelligence software systems?’, Computer Law and Security Review, volume 33, issue 5, October 2017, pages 685-699.

Avihay Dorfman, ‘Against Market Insularity: Market, Responsibility, and Law’

In this paper, I take stock of some leading attempts to drive a wedge between distinctively market reasoning and practical (including moral) reasoning. Although these attempts focus on different normative foundations – the epistemology of market interaction, the autonomy of its participants, the stability-enhancing quality of markets, and the authority of democratic decision-making – they are of a piece insofar as they seek to trivialize the role of private responsibility for realizing the demands of morality and justice. Essentially, they seek to insulate, at least to an important extent, the market practice of doing well from the demands of doing right. I argue that they each fail, and that their respective failures motivate the pursuit of a more successful conception of the interaction between markets and morality. I argue that the key to developing this conception is law and, in particular, the legal forms of interaction that lie at the center of economic markets. Rather than merely facilitating any number of desirable goals, these legal forms construct the moral landscape within which market participants act. This observation opens the door for a better account of the ineliminable place of moral responsibility in and around the market.

Dorfman, Avihay, Against Market Insularity: Market, Responsibility, and Law (September 19, 2017).

Punitive Damages in Italian Law – Corte di Cassazione 5 July 2017 no 16601

In the current legal system, the purpose of civil liability law is not just to make the victim of a tort whole again, since the functions of deterrence and punishment are also inherent in the system. The American doctrine of punitive damages is therefore not ontologically contrary to the Italian legal system. However, the recognition of a foreign judgment awarding such damages is subject to the condition that the judgment has been rendered in accordance with some legal provisions of the foreign law guaranteeing the standardization of cases in which they may be awarded (tipicità), their predictability, and their outer quantitative limits. The enforcing court must focus solely on the effects of the foreign judgment and on their compatibility with public policy.

The Italian Law Journal volume 3 number 2 (21 September)

Faure, Visscher and Weber, ‘Liability for Unknown Risks: A Law and Economics Perspective’

In the law and economics literature liability is generally regarded as an instrument which provides potential tortfeasors with incentives for optimal care taking. The question, however, arises whether liability can still provide those incentives when risks are unknown. That is the central question that is addressed in this contribution. One may, furthermore, have to differentiate between risks that are unknown to the tortfeasor and those are that not known according to the state of the art. After setting out the economic functions of liability rules and regulation the effects of missing information for care levels and activity levels is sketched and attention is paid to the way in which strict liability and negligence affect the incentives to do research concerning unknown risks. We conclude that an exposure to liability may on the one hand provide potential tortfeasors with incentives to do further research and hence to innovate; on the other hand, liability for unknown risks could also limit activity levels of socially desirable activities. We therefore conclude that it remains inherently difficult to use tort law as an instrument to provide incentives to generate information concerning unknown risks. We argue that in the tradeoff between tort liability and safety regulation there are strong arguments in favour of safety regulation, on the condition that it is used in a smart mix with liability rules. Finally, we equally investigate problems that arise in case of insurance of liability for unknown risks.

Faure, Michael G and Visscher, Louis T and Weber, Franziska, Liability for Unknown Risks: A Law and Economics Perspective (April 1, 2016). Journal of European Tort Law, volume 7(2), p 198-228, 2016.

Jason Varuhas, ‘Taxonomy and Public Law’

This paper (i) identifies the reasons for the general absence of legal taxonomy in public law scholarship; (ii) argues that legal taxonomy and taxonomic debate is vital to the principled development of public law and rigorous legal analysis, and is of acute importance today given trends towards open-ended balancing in public law adjudication which threaten to radically undermine the rational ordering of the legal system; and (iii) takes the first steps towards developing a map of English public law fields.

As to (i) the reasons for the absence of taxonomic work in public law include that the very notion of public law was long unknown to English law and is steeped in theoretical disagreement; that modern legal taxonomers have followed their Roman forebears in focusing on private law; and that contemporary trends in legal scholarship are away from doctrinal work, and particularly doctrinal scholarship that looks across different fields of law.

As to (ii) legal categorization enhances our understanding of the law, and facilitates right answers to legal questions, rigorous and complete legal analysis, and rational and coherent legal development. Legal taxonomy promotes formal rule of law principles whereas approaches that eschew categorization are likely to radically undermine those principles. Legal scholars are uniquely well-placed to undertake analytical doctrinal work, including legal taxonomy, and such work therefore offers an important avenue for legal scholars to make a distinctive contribution to knowledge, and the legal system.

As to (iii) the paper takes the first steps towards developing a map of different fields. The taxonomy does not take the division between public law and private law as its starting point, placing no normative weight on that putative divide. Rather it seeks to simply categorize different fields of law according to their primary functions. In order to illustrate the taxonomic method, and to begin the process of legal categorization, the paper identifies and explains two distinct categories: (1) the law relating to regulation of public power in the public interest; and (2) the law relating to protection and vindication of basic individual rights. These different fields of law are each characterized by distinctive normative concerns and perform discrete and distinctly valuable functions. Different rules, principles, concepts and methods characterize each field, these differences being explicable and normatively justified by reference to the different functions that each field performs. Having taken the first steps towards legal categorization the paper then proceeds to demonstrate how identification of discrete fields has a bearing on analysis of contemporary legal issues, examining the question of whether the proportionality method developed in human rights law ought to be read across to the common law of judicial review. The paper concludes that without good legal taxonomy and vigorous taxonomic debate, complete, nuanced, and rigorous legal analysis may be impossible.

Varuhas, Jason NE, Taxonomy and Public Law (September 16, 2017).

Christopher Newman, ‘Using Things, Defining Property’

Accounts of property tend to define it as a right to exclude and treat use-privileges as incidental by-products of that right. This paper sketches a different approach, one that treats recognition of use-privileges to things as prior and then asks what sorts of rights might be justified in their support. I attempt to defend this approach against the analytical and doctrinal arguments made by Simon Douglas and Ben McFarlane in their paper Defining Property Rights. As the concept of ‘use’ depends upon that of ‘thing’, I also attempt to shore up the reliance on ‘things’ as central to the concept of property. In this vein, I argue for a concept of ‘thing’ that encompasses any discrete and intelligible nexus of human activity with respect to which human purposes may come into conflict, arguing that this renders intellectual property rights straightforwardly intelligible as usufructary interests in things. I also offer a response to Christopher Essert’s argument in Property in Licenses and the Law of Things to the effect that property should jettison any reliance on things and simply view property rights as aimed at excluding others from classes of activity. Here my contention is that the identification of some discrete ‘thing’ as an object of property provides a necessary focal point for the concepts of use and interest that are both functionally and normatively essential to property as a human institution.

Newman, Christopher M, Using Things, Defining Property (September 18, 2017). Property Theory, James Penner and Michael Otsuka, eds, Cambridge University Press, 2018 forthcoming; George Mason Legal Studies Research Paper No LS 17-17.