Fovargue and Neal, ‘ “In Good Conscience”: Conscience-Based Exemptions and Proper Medical Treatment’

Lack of clarity about the proper limits of conscientious refusal to participate in particular healthcare practices has given rise to fears that, in the absence of clear parameters, conscience-based exemptions may become increasingly widespread, leading to intolerable burdens on health professionals, patients, and institutions. Here, we identify three factors which clarify the proper scope of conscience-based exemptions: the liminal zone of ‘proper medical treatment’ as their territorial extent; some criteria for genuine conscientiousness; and the fact that the exercise of a valid conscience-based exemption carries certain duties with it. These restricting factors should reassure those who worry that recognising rights of conscience at all inevitably risks rampant subjectivity and self-interest on the part of professionals. At the same time, they delineate a robust conscience zone: where a claim of conscience relates to treatment with liminal status and satisfies the criteria for conscientious character, as well as the conditions for conscientious performance, it deserves muscular legal protection.

Sara Fovargue and Mary Neal, ‘In Good Conscience’: Conscience-Based Exemptions and Proper Medical Treatment. Medical Law Review (2015), doi: 10.1093/medlaw/fwv007. First published online: May 5, 2015.

Eleni Frantziou, ‘The Horizontal Effect of the Charter of Fundamental Rights of the EU: Rediscovering the Reasons for Horizontality’

This article analyses the horizontal effect of the Charter of Fundamental Rights of the European Union. Horizontal effect has been an integral part of the Union’s application of fundamental rights, especially in the field of equality. However, the codification of fundamental rights in the Charter raises important questions as to how horizontal effect will continue to apply in the EU, particularly in the aftermath of the Court’s reticent rulings in cases such as Dominguez and Association de Médiation Sociale. This article argues that the emphasis on prior approaches to horizontal effect in recent rulings fails to address the profound constitutional issues that the horizontal effect of a fundamental rights catalogue raises, which concern the role of private responsibility within the developing constitutional order of the European Union. It therefore calls for a more systematically theorised approach towards the horizontal application of fundamental rights under the Charter framework.

Eleni Frantziou, The Horizontal Effect of the Charter of Fundamental Rights of the EU: Rediscovering the Reasons for Horizontality. European Law Journal. Article first published online: 4 MAY 2015.

Sally Brown Richardson, ‘Abandonment and Adverse Possession’

The number of vacant properties nationwide jumped by 4.5 million between 2000 and 2010, an increase of 44%, due to a variety of factors, such as the financial crisis and natural disasters. Vacant properties create a vicious cycle of negative externalities: abandoned property breeds blight and crime, thereby further depressing the economy, which leads to more abandoned property. Solving the problem of abandonment is a top priority for municipal leaders, but effective means of putting abandoned property in the hands of a private owner are hard to come by. Cities have experimented with a variety of solutions ranging from eminent domain to land banks to enticing owners to return to their abandoned property through grant money.

This Article proposes an alternative solution for abandoned property: adverse possession with a reformed possession requirement. This Article argues that the traditional application of the possessory requirement for adverse possession should be modified when the true owner has vacated his property. In this instance, actual possession should be unnecessary; instead, a notice of intent to possess should be sufficient to acquire abandoned property through adverse possession. By altering the doctrine in this manner, adverse possession can be an efficient solution for private parties to acquire ownership of abandoned properties while still offering a temporal safety net to protect true owners. Furthermore, expanding possession in this manner allows the doctrine to serve as a tool for market discovery that encourages adverse possessors and true owners to transfer ownership through voluntary bilateral transactions.

Richardson, Sally Brown, Abandonment and Adverse Possession (April 20, 2015). Houston Law Review, Vol 52, No 1385, 2015.

Benjamin Shmueli, ‘Legal Pluralism in Tort Law Theory: Balancing Instrumental Theories and Corrective Justice’

Unified-monistic theories of tort law focus on a single goal, usually corrective justice, distributive justice, or optimal deterrence. Unlike these approaches, mixed-pluralistic theories attempt to balance between various goals of tort law by integrating several of the considerations underlying these different goals. These theories of legal pluralism reflect ideological diversity, in this case between different theories of the same legal system. This Article discusses the challenge of legal pluralism to settle the possible collision between different goals of tort law within the framework of tort law theory.

Starting from a position of support for the mixed-pluralistic thesis, this Article first identifies the advantages this approach offers and then proposes a new mixed-pluralistic approach which is adapted to the multitude of significant changes that have affected contemporary common tort law in recent years. This new approach divides (mostly negligence) issues into two principal categories based on the profile of the defendant and the nature of his tortious act, striking a balance between the various goals of tort law, as the situation warrants. Thus, the suggested mixed-pluralistic approach offers a new and actual balance between corrective justice and instrumental theories – that is, distributive justice and optimal deterrence. It balances between deontological theories, which are interested in the moral aspect of a tort action, and utilitarian theories, which are interested in the consequentialist outcome of a tort action. The proposed approach will be implemented through the presentation of a number of tort issues, some traditional and classic and others modern and novel.

The suggested approach challenges the study of both law and economics and corrective justice by trying to delimit their dominance as sole goals. It also corresponds with other pluralistic approaches to the study of torts.

Benjamin Shmueli, ‘Legal Pluralism in Tort Law Theory: Balancing Instrumental Theories and Corrective Justice’, University of Michigan Journal of Law Reform, Volume 48, Issue 3 (2015).

Orin Kerr, ‘Norms of Computer Trespass’

Federal and state laws prohibit computer trespass, codified as a ban on unauthorized access to a computer. In the last decade, however, courts have divided sharply on what makes access unauthorized. Some courts have interpreted computer trespass laws broadly to prohibit trivial wrongs such as violating Terms of Service to a website. Other courts have limited the laws to harmful examples of hacking into a computer. Courts have struggled to interpret authorization because they lack an underlying theory of how to distinguish authorized from unauthorized access.

This Essay offers such a theory. It contends that authorization is inherently contingent on social norms. Starting with trespass in physical space, it shows how concepts of authorization necessarily rest on shared understandings of what technologies and its users are allowed to do. Norms classify the nature of each space, the permitted means of access, and the permitted context of access. This idea, applied to the Internet, readily answers a wide range of difficult questions of authorization under computer trespass laws such as the Computer Fraud and Abuse Act. It shows that the open norms of the web authorize most kinds of web use. On the other hand, the closed norms of authentication limit use of canceled or shared accounts. Properly understood, the norms-based nature of trespass does not render unauthorized access laws uncertain. To the contrary, the lines to be drawn become surprisingly clear once you identify the correct norms of computer usage.

Kerr, Orin S, Norms of Computer Trespass (May 2, 2015). Columbia Law Review, forthcoming.

Ronen Perry, ‘Pluralistic Legal Theories: In Search of a Common Denominator’

This Essay embarks on a meta-theoretical project to provide a unifying philosophical framework for pluralistic legal theories. Put differently, it seeks to identify a structural common denominator for all pluralistic theories of law, with a particular emphasis on private law (torts and contracts). The Essay first rejects the notion of complementarity coined by Nobel Prize laureate Niels Bohr, and applied to legal theory by Izhak Englard. It then advocates the allegedly Thomist aphorism hominem unius libri timeo (‘I fear the man of a single book’), and connects it to Isaiah Berlin’s renowned distinction between the hedgehog and the fox.

Perry, Ronen, Pluralistic Legal Theories: In Search of a Common Denominator (May 1, 2015). Tulane Law Review, Vol 90, 2015.

Eric Alden, ‘Rethinking Promissory Estoppel’

Samuel Williston, the official Reporter for the ALI’s first Restatement of the Law of Contracts in 1932, claimed that promises had been enforced without consideration in sufficiently many cases across different factual situations that the only way to embrace them all was to create a provision, set forth in Section 90 and generally referred to as ‘promissory estoppel’, that purports to suspend wholesale the normal rules governing contract formation. This Article challenges that assertion as a factual matter, and challenges the claim that only a provision as broad as Section 90 could accommodate certain limited exceptions to the consideration requirement that had been observed at the time.

To the extent Williston’s initial claim of authority rests upon questionable assertions, fundamental concerns arise as to the legitimacy of Section 90 in its current form and as to the doctrinal validity of cases decided on the basis thereof.

This Article further addresses the implications of this analysis for the future of contract law. In order to reduce the risk of contract bleeding out doctrinally into tort, the Article argues that a markedly more modest approach than that reflected in Section 90 should be taken with respect to the enforcement of promises in the absence of consideration. Specifically, the Article argues in favor of discrete, limited categorical exceptions to the consideration requirement. As to factual situations not falling within those categorical exceptions, courts should strongly consider an implied unilateral contract analysis as an analytic paradigm preferable to that of promissory estoppel.

Alden, Eric, Rethinking Promissory Estoppel (May 1, 2015). Nevada Law Journal, forthcoming.

Baker and Swedloff, ‘Liability Insurer Data as a Window on Lawyers’ Professional Liability’

Using the best publicly available data on lawyers’ liability claims and insurance – from the largest insurer of large law firms in the US, the American Bar Association’s Standing Committee on Professional Liability, and a summary of large claims from a leading insurance broker – this article reports the frequency of lawyers’ liability claims, the distribution and cost of claims by type of practice, the disposition of claims, and lawyers liability insurance premiums from the early 1980s to 2013. Notable findings include remarkable stability over thirty years in the distribution of claims by area of practice among both small and large firms, a large percentage of claims (64-70%) involving de minimus expense (less than $1000) in the small firm market, and in the large firm market a declining rate of ‘real claims’ per 1000 lawyers, a declining rate of real average gross loss per claim, and stable real premiums per lawyer since the early 1990s. Because of data limitations, however, these results cannot be confidently generalized. Further advances in the understanding of lawyers’ liability and insurance will require qualitative research.

Baker, Tom and Swedloff, Rick, Liability Insurer Data as a Window on Lawyers’ Professional Liability (April 27, 2015). UC Irvine Law Review, forthcoming; U of Penn, Inst for Law & Econ Research Paper No 15-16.

Lai, Chau and Lorne, ‘“Unclear” Initial Delineation of Property Boundaries and the Third Coase Theorem’

This interdisciplinary study, which references previous research on the evolution of land law and real world examples of land market operating with unclear property boundaries, demonstrates that Ronald Coase’s argument that delimitation of property rights is a prelude to market transaction applies to urban development, in which certitude in initial property boundaries in geodetic terms is not overriding. It explains why even a powerful landlord can be unsure of and do not even want to know the boundaries of the land of his/her tenants and why this mapping limitation in itself does not inhibit market transactions. When land is treated as an input for a chattel that is no longer fixed to land, area measurement is more important than boundary-fixing. When land becomes valued for its location and fixtures (i.e., as real estate), precise boundary delineations and disputes over the precision of cadastral surveys emerge.

Boundary disputes are a particularly painful form of litigation. Feelings run high and disproportionate amounts of money are spent. Claims to small and valueless pieces of land are pressed with the zeal of Fortinbras’ army (Lord Hoffman in Wibberley v Insley [1999] HL15).

Lai, Lawrence Wai-Chung and Chau, KW and Lorne, Frank T, ‘Unclear’ Initial Delineation of Property Boundaries and the Third Coase Theorem (May 1, 2015). Land Use Policy, forthcoming.

George Barker, ‘Common Myths About the Economic Effect of Copyright Term Extensions for Sound Recordings’

The Canadian Government recently announced that it is amending the Copyright Act to extend the term of protection for performers and makers of sound recordings from its current 50 years to 70 years. This will bring Canada’s laws more into line with those of more than 60 countries which have protection of 70 years or more, including many of Canada’s major trading partners that have terms of 70 years or more, such as the U.K., Germany, France, Italy, Belgium, Ireland, Australia, Singapore, Mexico (75 years) and the United States (95 years).

Some have questioned the economic consequences of such an extension. This report examines and debunks four myths about the likely economic consequences that have been raised by certain copyright users’ advocates following the government’s recent Budget announcement on April 21, 2015. The four (4) myths are as follows:

Myth 1: Heavy Costs to Consumers in Royalty Payments. It is claimed that term extension will cost consumers millions of dollars in extra royalties.

Myth 2: Royalty Payments Will Be Sent Out of the Country.

Myth 3: No Additional Incentive for Creativity. It has been claimed that “[l]ong copyright terms are a poor recipe for compensating creators who generally receive low royalties from their works.”

Myth 4: Less Entering the Public Domain. It is claimed that term extension will simply leave Canadians with 20 additional years of no new works entering the public domain.

These common mistakes in economic analysis have been revived from the 2005-9 UK and EU debate, and the 2005 Australian debate on term extension. In each of those cases, these arguments were considered and rejected by policy makers in deciding to extend the term of copyright.

In this paper, I review the evidence cited in support of each of the above four contentions, using accepted economic methodology and current economic thinking on topics related to copyright term of protection. I find a number of errors undermining the studies which oppose term extension including that they ignore digital piracy; ignore the free rider problem; assume copyright creates a monopoly; assume deadweight costs due to non-rivalry; make modelling errors; and ignore the facts, in particular on what happens to consumer prices. I conclude that term extension is likely to have a net positive economic effect by i) first helping to restore revenues, and the incentive to invest in new copyright goods, which has been adversely affected by the effects of digital piracy; and ii) second enhancing incentives to invest in, market, maintain and enhance existing copyright goods.

Barker, George Robert, Common Myths About the Economic Effect of Copyright Term Extensions for Sound Recordings (April 29, 2015).