‘Two new books: European private law as a national discipline’

The international character of European private law is one of the reasons why I have always been attracted to this field. Like legal history and philosophy of law, European private law is an academic discipline practiced by academics from a wide range of different countries together making up a vibrant academic community. In law, this is still exceptional. This, however, is not the only dimension of European private law. There is also the national dimension: how do national private laws and European private law interact? … (more)

[Jan Smits, M-EPLI Blog, 30 March]

Betts and Jaep, ‘The Dawn of Fully Automated Contract Drafting: Machine Learning Breathes New Life Into a Decades-Old Promise’

Technological advances within contract drafting software have seemingly plateaued. Despite the decades-long hopes and promises of many commentators, critics doubt this technology will ever fully automate the drafting process. But, while there has been a lack of innovation in contract drafting software, technological advances have continued to improve contract review and analysis programs. ‘Machine learning’, the leading innovative force in these areas, has proven incredibly efficient, performing in mere minutes tasks that would otherwise take a team of lawyers tens of hours. Some contract drafting programs have already experimented with machine learning capabilities, and this technology may pave the way for the full automation of contract drafting. Although intellectual property, data access, and ethical obstacles may delay complete integration of machine learning into contract drafting, full automation is likely still viable.

Kathryn D Betts and Kyle R Jaep, The Dawn of Fully Automated Contract Drafting: Machine Learning Breathes New Life Into a Decades-Old Promise. 15 Duke Law and Technology Review 216 (March 29, 2017).

Goudkamp and Nolan, ‘Contributory Negligence on Appeal’

Contributory negligence is a private law doctrine of considerable practical importance, and trial court decisions applying the doctrine are frequently the subject of appeals. In this article, we report the key findings of an empirical study of the operation of the contributory negligence doctrine in the Court of Appeal. A fuller report of the results of our study can be found in James Goudkamp and Donal Nolan, ‘Contributory Negligence in the Court of Appeal: An Empirical Study’ (2017) 37 Legal Studies (forthcoming). This study builds upon an earlier exploration of the handling of the contributory negligence doctrine at first instance: James Goudkamp and Donal Nolan, ‘Contributory Negligence in the Twenty-First Century: An Empirical Study of First Instance Decisions’ (2016) 79 Modern Law Review 575.

Goudkamp, James and Nolan, Donal, Contributory Negligence on Appeal (March 29, 2017) (April) New Law Journal pp 18-19.

James Pfander, ‘Constitutional Torts and the War on Terror’

This book explores the response of the federal courts to Bivens claims brought to secure remedies for torture and other human rights abuses that were committed in connection with the Bush Administration’s war on terror. It finds that such claims have been almost universally rejected, on one basis or another. Indeed, while some claims may have settled, no federal appellate court has confirmed an award of damages to a victim of torture. As a result, the constitutional limits on torture (if any) in the national security context remain undeveloped and victims have received no formal redress.

This book chronicles the failure of Bivens litigation, explores the justifications for judicial silence, and suggests a solution. It finds that the modern federal judiciary has pushed these suits aside as part of a stated reluctance to evaluate matters of national security policy as to which the political branches have greater expertise. Such a deferential approach represents a marked departure from a nineteenth-century approach to remedies for federal government wrongdoing. Back then, such leading jurists and statesmen as James Madison, John Marshall, and Joseph Story applied a narrow test of legality to claims of government wrongdoing. The executive was free to act in a moment of crisis, and could request indemnity from Congress. But as Justice Story explained, federal courts were to ignore proffered excuses based on claims of military necessity and national security: ‘the Court can only look to the questions, whether the laws have been violated; and if they were, justice demands, that the injured party should receive a suitable redress’.

Federal courts can discharge their judicial duty and reclaim their law-saying function in war-on-terror litigation by adopting changes to current doctrine. The book argues that the Supreme Court should presume the right to sue under Bivens, in keeping with the lessons of the 1988 Westfall Act; it should eliminate the qualified immunity defense in cases in which the victim seeks only nominal damages; and it should recognize that the Constitution applies as a limit on government action taken outside the territorial boundaries of the United States. Two chapters of the book appear here: the Introduction and Chapter 5, responding to arguments against judicial intervention.

Pfander, James E, Constitutional Torts and the War on Terror (March 28, 2017). Northwestern Public Law Research Paper No 17-07.

Polinsky and Shavell, ‘Subrogation and the Theory of Insurance When Suits Can Be Brought for Losses Suffered’

The theory of insurance is considered here when an insured individual may be able to sue another party for the losses that the insured suffered — and thus when an insured has a potential source of compensation in addition to insurance coverage. Insurance policies reflect this possibility through so-called subrogation provisions that give insurers the right to step into the shoes of insureds and to bring suits against injurers. We show that subrogation provisions are a fundamental feature of optimal insurance contracts because they relieve litigation-related risks and result in lower premiums — financed by the litigation income of insurers. This income includes earnings from suits that insureds would not otherwise have brought. We also characterize optimal subrogation provisions in the presence of loading costs, moral hazard, and non- monetary losses.

Polinsky, A Mitchell and Shavell, Steven, Subrogation and the Theory of Insurance When Suits Can Be Brought for Losses Suffered (March 9, 2017). Stanford Law and Economics Olin Working Paper No 506.

Adam Mossoff, ‘Trademark as a Property Right’

Although trademark is a property right, the conventional wisdom among modern commentators and prominent judges is that it is only a regulatory entitlement that promotes consumer welfare. This essay fills a lacuna in modern trademark theory by identifying how and why nineteenth-century courts first defined trademark as a property right, and how this explains the structure of trademark doctrines today. The key conceptual insight is that a trademark is a use-right that is derived from and logically appurtenant to a separate and broader property right owned by a commercial enterprise — goodwill. Trademark thus shares many conceptual and doctrinal similarities to other use-right-based property rights that are appurtenant to larger estates, such as easements and riparian interests. This conceptual thesis is important, because it explains the nature and limits of this property right, such as, among others, why trademarks must be used in the marketplace, why trademarks cannot be separated from a commercial enterprise’s goodwill, and, perhaps most importantly, why trademarks are not full, independent property rights like a fee simple in land or title in a patent. The usufructuary nature of the property interest in a trademark thus clarifies what many scholars and judges view as its doctrinal peculiarities. It is only because they have unmoored trademark rights from their original definition and justification as use-right property interests that they are themselves confused about trademark rights and the nature of the doctrines that define and limit its use in the marketplace.

Mossoff, Adam, Trademark as a Property Right (March 25, 2017).

‘Is It Time to Examine the Concept of Originality in Musical Works?’

Emma Steel, Original Sin: Reconciling Originality in Copyright with Music as an Evolutionary Art Form, 37 European Intellectual Property Review 66 (2015). Copyright often makes little sense, particularly when you explain it to people who are not familiar with its concepts. Jessica Litman expresses this problem well in her book Digital Copyright by stating that people ‘find it very hard to believe that there’s really a law out there that says the stuff the copyright law says’. Anyone who has had to talk to members of the public about copyright will have similar experiences. One area of copyright that has been receiving quite a lot of coverage recently is originality of music, especially in various high profile cases in which famous artists have been sued for copyright infringement … (more)

[Andres Guadamuz, JOTWELL, 29 March]

de Costa and Tam, ‘Liability for providing a prognosis in surgical practice’

The common law’s development of the doctrine of informed consent has progressively imposed broader obligations on surgeons to provide patients with information about the surgical and alternative treatment choices available. Prognosis is critical because the patient cannot provide informed consent without information about the likely evolution of the physiological or pathological processes involved in the surgery under consideration. But does the duty of care that a surgeon owes a patient require a precise prognosis to be given in every case? A recent decision of the Court of Appeal considers that question.

Alex de Costa and Amy Tam, Liability for providing a prognosis in surgical practice, Medico-Legal Journal. First Published March 24, 2017.

Elizabeth Rosenblatt, ‘The Great Game and the Copyright Villain’

This essay explores the reactions of Sherlock Holmes fans and enthusiasts to assertions of intellectual property ownership and infringement by putative rights holders in two eras of Sherlockian history. In both the 1946-47 and 2013-15 eras, Sherlock Holmes devotees villainized the entities claiming ownership of intellectual property in Holmes, distancing those entities from Sir Arthur Conan Doyle and casting them as greedy and morally bankrupt. Throughout each era, Sherlockians did not shy away from creating transformative works based on the Holmes canon over the objections of putative rights holders. This complicates the usual expectation that copyright assertions against fans are likely to chill fan production. The essay explores possible reasons why Sherlockian fandom might differ from other fandoms in this respect, including the role of the Great Game form of Sherlockian fandom in shaping fan attitudes toward their subject.

Rosenblatt, Elizabeth, The Great Game and the Copyright Villain (March 15, 2017). Transformative Works and Cultures, Vol 23, 2017.

Cristina Carmody Tilley, ‘Tort Law Inside Out’

For more than a century, scholars have been looking at tort law from the outside in. Theorists committed to external goals like efficient allocation of resources or moral justice have treated tort as a mere vehicle for the achievement of their policy preferences, rather than as a body of law with a discernible internal purpose. It is time to revisit tort on its own terms.

This Article takes its cue from the New Doctrinalists, who urge that extralegal normative insights from fields such as economics or philosophy aid adjudication only when they are directly tethered to legal concepts; that is, to doctrine. Scrutinizing tort doctrine yields a surprising insight: tort law is not primarily concerned with efficiency or morality, as the instrumentalists have long contended, but with community. A linguistic study of the Restatement of Torts reveals that doctrine alludes to community more frequently and more comprehensively than it does to any other justificatory concept. Specifically, throughout the Restatement’s discussion of negligence, strict liability, and intentional wrongs, doctrine disfavors stating interpersonal duties in positive terms, preferring to let them float with community values. Consequently, tort operates as a vehicle through which communities perpetually reexamine and communicate their values, encouraging individuals to coordinate private relationships without undue state involvement.

Tort law’s stated goal is to construct community. Moreover, tort doctrine acknowledges that two distinct kinds of community—closed and open—can generate the values that govern resolution of interpersonal disputes. Accordingly, tort doctrine embeds a choice between the morality norms of traditional, closed communities and the efficiency norms of the modern, open community, depending on whether the dispute is local or national in scope. So a descriptive account of tort doctrine suggests that morality and efficiency are not mutually exclusive theories of tort, but rather complementary manifestations of tort law’s broader community-constructing purpose. A survey of American tort cases confirms that courts have intuitively been fluctuating between local morality norms and national efficiency norms for decades, without fully acknowledging or operationalizing this practice.

Pivoting from theory to practice, the Article suggests that tort law should embrace and refine its ability to toggle between local morality and national efficiency. The Article briefly sketches how the toggle would operate to adjudicate select hot-button issues arising within each type of tort liability: battery (intentional tort), youth football (strict liability), and failure to vaccinate (negligence). On each of these topics, group norms—and therefore liability—would be expected to vary within adjudicative communities. Making this normative toggle explicit would both enhance the internal integrity of tort law and improve tort law’s external standing relative to other bodies of law such as the Constitution or federal statutes. Moreover, the Article concludes, understanding tort liability as an expression of particular community values might prevent the constitutional override of injury verdicts arising from protected behavior such as gun ownership or speech.

Cristina Carmody Tilley, Tort Law Inside Out. Yale law Journal vol 126 (2016-2017) no 5 (March 2017).