Possession and the Distractions of Philosophy

19 May 2012 | Author: admin

Abstract:
This paper argues that many types of philosophical argument distract us, rather than provide clarity, in relation to the role that possession plays in the law of property. The philosophical strategies I have in mind include the natural law tradition’s fascination with state-of-nature stories as well as Dworkinian claims that law is a matter of interpretation that must make reference to a general theory of justice. By either imagining away the concrete details of our legal system and institutions (through invoking a state of nature) or by passing too quickly to weightier ideas of justice and fairness (through Herculean judgment), these strategies distract us from seeing the centrality of law to a proper understanding of possession.

To show this, I use the well-known distinction between justifying a particular action within a practice and justifying a practice as a whole. Puzzles about whether some particular action counts as “possession” and why this might be so are questions of the former kind and puzzles about why we might want to recognize and protect possession at all are questions of the latter kind. The key point is that different kinds of answers are suitable to the different questions. In other words, it is not clear at all that answering the question of how one should understand the elements of the practice of possession has anything to do with answering the question of why we think the practice of possession as a whole is justified.

Answering questions about the elements of a practice should therefore make reference to the practice itself. The law of possession has multiple aspects but three stand out: it can refer to the relationship between a person and a thing (factual possession), it can refer to rights (the right of possession), it can refer to the question of to whom these rights can be attributed (possessory title). My claim is that to properly understand how these three aspects work and are related, we also need to bring to the fore the specifically legal aspects of this practice that help to constitute it and serve as its central organizing ideas. In this regard I look to two different legal ideas. The first is Lon Fuller’s understanding of the principles of legality, which I argue can help us understand the role that factual possession plays in determining title conditions. The second is Kant’s understanding of omnilaterality as a legal relation (which I will sever from his broader project of political justification), which I argue can help us understand the logical structure of the right of possession. Taken together these legal ideas illuminate that possession is at its core a legal practice and that references to pre-legal thought experiments (like the state of nature) or extra-legal values (such as political morality) are unhelpful in understanding its particular doctrinal features.

Austin, Lisa M., Possession and the Distractions of Philosophy (May 18, 2012). J. E. Penner and H. E. Smith (eds.), The Philosophical Foundations of Property Law (Oxford: Oxford University Press), Forthcoming.

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The Reasonable Person

19 May 2012 | Author: admin

Abstract:
The Article sets forth a conclusive answer to one of the most fundamental questions in tort law, which has bedeviled and divided courts and scholars for centuries: Should reasonableness be a normative or a positive notion? Put differently, should the reasonable person be defined in accordance with a particular normative ethical commitment, be it welfare maximization, equal freedom, ethic of care, and so forth, or in accordance with an empirically observed practice or perception? Only after answering this question can one move on to selecting a concrete definition of reasonableness. Our own answer is radical but inescapable: Only normative definitions are logically acceptable. The Article does not endorse a particular definition of reasonableness. Instead, it focuses on the fundamental choice between the two conflicting paradigms. We put forward and defend the thesis that normative definitions are categorically preferable to positive definitions, because the latter are logically unacceptable, whereas the former merely raise partially surmountable practical problems. Although the Article focuses on the reasonable person in torts, the implications of our analysis are far-reaching, because the concept of reasonableness prevails in most areas of American law.

Alan D Miller and Ronen Perry, The Reasonable Person. New York University Law Review [Vol. 87:323] (2012.)

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Special number on Civil Recourse Theory – Florida SULR

19 May 2012 | Author: admin

Florida State University Law Review VOLUME 39 -FALL 2011 – NUMBER 1

Civil Recourse or Civil Powers? by Curtis Bridgeman
Civil Recourse as Mutual Accountability by Stephen Darwall & Julian Darwall
Torts and Other Wrongs by John Gardner
The Taxonomy of Civil Recourse by Andrew S Gold
Tort Law at the Founding by John CP Goldberg
Corrective Justice for Civil Recourse Theorists by Scott Hershovitz
Is Tort Law a Form of Institutionalized Revenge? by Gabriel Seltzer Mendlow
Why There is No Duty to Pay Damages: Powers, Duties, and Private Law by Nathan B Oman
Civil Recourse and Separation of Wrongs and Remedies by Arthur Ripstein
What is Wrong about Wrongdoing? by Anthony J Sebok
Interpreting Tort Law by Emily Sherwin
Civil Recourse and Social Equality by Jason M Solomon
Civil Recourse and Corrective Justice by Ernest J Weinrib
Substantive Standing, Civil Recourse, and Corrective Justice by Benjamin C Zipursky
Civil Recourse Revisited by John CP Goldberg & Benjamin C Zipursky

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The Unification of Private Law in Europe from the Perspective of Polish Legal Culture

19 May 2012 | Author: admin

Abstract:
The paper analyses the relationship between the possible future unification of private law in the European Union and Polish culture of private law understood as the ability of Polish legal culture to adapt to a new unified European private law in the future. Based on the assumption that Polish culture of private law does not have a ‘unique’ or ‘original’ character making it qualitatively distinct from e.g. German or French legal culture, the paper argues that Polish legal culture as such does not pose any obstacles to the unification of private law. The paper also analyses the possible impact of the unification of Polish private law on the practices of Polish legal culture, i.e. legislation, adjudication, legal counselling, scholarship and education. It argues that the unification would be the most beneficial for Polish practitioners and scholars, making their professions much more internationalised than at present and enhancing the possibility of their effective free movement across the Union. The same applies to legal education: the new unified European private law introduced into curricula of law schools, law faculties and legal professional training would mean that Polish students and apprentices would study subjects of a pan-European, and not only national relevance. A benefit common to judges, practitioners and scholars would be the possibility of resorting to a much wider scope of case-law and scholarly writings in pleadings, court decisions and academic discussions de lege lata. However, it would also be important to ensure that an input from Polish scholars is made into the new European doctrine of private law, so that the movement of legal ideas is not only one-sided.

Mańko, Rafał Tomasz, The Unification of Private Law in Europe from the Perspective of Polish Legal Culture (2008). (2007-2008) 11 Yearbook of Polish Legal Studies 109.

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Apologies as Intellectual Property Remedies: Lessons from China

19 May 2012 | Author: admin

Abstract:
It is a frequent refrain that “the world is shrinking.” In this same vein, the global influence of China is clearly rising. Chinese businesses are becoming more prominent in the global market, and as such, the influence and effect of Chinese law is likewise gaining in import. Chinese intellectual property law is no different.

One notable aspect of Chinese intellectual property law is the availability of apology as a remedy. Despite a culture that places a high value on apology, and considerable legal scholarship and precedent regarding apology as remedy, many in the United States scoff at the notion of introducing apology as a remedy in U.S. intellectual property law. There are, however, limits to the effectiveness of injunctions and damages (currently the predominant remedies in U.S. intellectual property law), and tangible benefits to apology. This Article uses Chinese intellectual property law as an example and addresses the limits of the current U.S. intellectual property regime, as well as the potential benefits of a change. The Article concludes that it is time for the United States to learn from beyond its boundaries in order to provide just recourse in intellectual property disputes.

Nguyen, Xuan-Thao, Apologies as Intellectual Property Remedies: Lessons from China (May 17, 2012). Connecticut Law Review, Vol. 44, 2012.

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Tort Law Culture in the United Kingdom: Image and Reality in Personal Injury Compensation

18 May 2012 | Author: admin

Abstract:
Although culture is very difficult to define, we can say that tort rules, procedures and institutions both reflect and help determine the broad culture of the society of which they are a part. Concepts such as wrongdoing, causation, compensation and justice depend upon a cluster of popular beliefs and attitudes which are in turn moulded by the legal system. One aim of this article is to further illustrate how the tort system reflects particular cultural institutions and practices. But a more important theme is in conflict with this aim: we point to a dissonance between cultural attitudes and the reality of the tort system in practice. That is, we examine perceptions of tort derived from commonly held views about how the system of justice ought to operate and we contrast how tort, in practice, often does not correspond to these views.

This article is written in two parts. In the first part we consider images of tort deriving from traditional portrayals of justice. We set out seven commonly held views about the operation of the personal injury litigation system and then we contrast what actually happens in practice. We note the rhetoric and the cultural learning derived from long-held views of how the legal system is supposed to operate and we then compare the reality. We start by reflecting upon the scope of tort principles. Next we consider who brings and defends personal injury cases and what role is played by courts and judges in their resolution. We then consider how the key principle of fault is interpreted in practice and how the institution of insurance and its operation affects these traditional perceptions of how justice is delivered. Finally, we look at the reasons why damages are awarded and what amounts are paid.

Overall, we set out the following seven commonly held cultural views of tort and then, by examining the actual practice of personal injury, we undermine them:
1. Tort law is universal and applies to all accidents and injuries
2. Tort claims for personal injury are often brought and defended by individuals
3. Tort claims are determined in court by judges aided by lawyers and juries
4. Tort liability is largely dependent upon proof of fault and findings of law
5. Tort cases reflect the justice requirement of due process and fairness
6. Tort focuses upon compensating financial loss and serious injuries
7. Tort awards full compensation for losses suffered

In the second part of this article we look at another set of images which contrast with those set out in the first part. These images portray the tort system in a very critical way depicting it as a burden that undermines rather than underpins society. It is widely perceived that tort has encouraged a damaging compensation culture. Our propensity to claim is said to have increased to such an extent that we can no longer accept personal responsibility for our misfortunes. The system is thought to be awash with unmeritorious claims which have been prompted by an ambulance-chasing entourage offering to work on a ‘no-win no-fee’ basis. Exaggeration and fraud are to the fore and non-existent or unmeritorious injuries are compensated. As in the first part of the article, although with less force, we then show how these images have become distorted from reality. In particular, the majority of injured people still do not go on to claim compensation despite being encouraged to do so through widespread ‘no-win no-fee’ advertising. The exception arises in the context of road traffic accidents, where there is a strong culture of claiming. The significant increase in the number of personal injury claims over the last forty years is largely attributable to an increase of such claims. Whilst the extent of spurious and fraudulent claiming has generally been exaggerated, again, in the context of road traffic accidents complaints have more foundation. We examine why such a strong culture of claiming has developed in the context of road traffic accidents as compared with other types of claim. In conclusion, having shown how traditional and modern portrayals of tort differ from the reality, we show how tort in practice is heavily influenced by institutional arrangements.

Lewis, Richard and Morris, Annette, Tort Law Culture in the United Kingdom: Image and Reality in Personal Injury Compensation (May 17, 2012).

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The New Private Law from the Harvard Law Review: Theory, Tort, Property, and more Theory

18 May 2012 | Author: admin

SYMPOSIUM: THE NEW PRIVATE LAW – Harvard Law Review 2012

Introduction: Pragmatism and Private Law by John CP Goldberg

The Obligatory Structure of Copyright Law: Unbundling the Wrong of Copying by Shyamkrishna Balganesh
Response: Copyright Is Not About Copying by Abraham Drassinower
Response: Unifying Copyright: An Instrumentalist’s Response to Shyamkrishna Balganesh by Richard A Epstein

Property as the Law of Things by Henry E Smith
Response: Exclusion and Private Law Theory: A Comment on Property as the Law of Things by Eric R Claeys
Response: Property as Modularity by Thomas W Merrill

Duties, Liabilities, and Damages by Stephen A Smith
Response: Comments on Stephen Smith’s ‘Duties, Liabilities, and Damages’ by Emily Sherwin

Palsgraf, Punitive Damages, and Preemption by Benjamin C Zipursky
Response: New Private Law Theory and Tort Law: A Comment by Keith N Hylton
Response: Method and Morality in the New Private Law of Torts by John Oberdiek

Posted in Civil Recourse, General, Intellectual Property, Negligence, Property, Remedies, Tort | Leave a Comment

Switzerland proposes future work by UNCITRAL on international contract law

18 May 2012 | Author: admin

“In preparation for the next meeting of the United Nations Commission on International Trade Law (UNCITRAL) to be held in New York from 25 June to 6 July 2012 Switzerland has submitted a proposal to the secretariat for the undertaking of work in the area of contract law. At the Rome conference last week on The Making of European Private Law Renaud Sorieul, the UNCITRAL Secretary, indicated that the secretariat would see a particular interest in this proposal …” (more)

[European Private Law News, 18 May 2012]

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Property and the Rule of Law

18 May 2012 | Author: admin

Abstract:
This paper offers a new framework for thinking about the relationship between the common law of property and the rule of law. The standard way of framing this relationship is within the terms of the form/substance debate within the literature on the rule of law — does the rule of law only include formal and procedural aspects or does it also encompass and support substantive rights such as private property rights and civil liberties? Jeremy Waldron and Richard Epstein have recently defended each of these positions, respectively. By focusing on the nature of common law reasoning, I wish to question the form/substance dichotomy that frames this debate and show that the formal aspects of the rule of law are in fact principles widely adopted within the practice of common law reasoning and, as such, play a large role in shaping the substantive content of common law property rights. In other words, once property rights are understood as the result of a practice of reasoning that routinely invokes rule of law principles, the standard form/substance dichotomy is untenable. In short, there is no “substance” in the common law of property that is not already informed by “form.” Understanding this has implications beyond the relationship between property law and the rule of law for it indicates an important defect in contemporary property theory more generally. My claim is that property theory has focused too much on the concept of, and justifications for, ownership and ignored the role that rule of law principles have played in shaping substantive property doctrine. Theories of ownership risk going astray if they seek to account for property doctrine without first appreciating the way that form influences substance. Moreover, theories of legal reasoning and justification risk going astray if they do not appreciate the role that rule of law principles play in providing important standards of legal justification and instead mistake these elements for either principles of political morality or references to broad policy considerations.

Austin, Lisa M., Property and the Rule of Law (January 1, 2012).

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Regulatory Techniques in Consumer Protection: A Critique of European Consumer Contract Law

17 May 2012 | Author: admin

Abstract:
This Article classifies the consumer protection techniques that European contract law employs into four categories: Mandatory arrangements; disclosure; regulation of entry to and exit from contracts; and pro-buyer default rules and contract interpretation. It argues that these techniques are far less likely to succeed than advocates, including the European Commission, believe, and that they may bring about unintended consequences and hurt consumers. The techniques and their limits are illustrated through a study of the proposed Common European Sales Law (CESL). The Article argues that the ambitious pursuit of consumer protection goals is also likely to interfere with the other main goals of European contract law: harmonizing the laws of member states, encouraging cross border trade, and improving consumers’ access to markets.

Bar-Gill, Oren and Ben-Shahar, Omri, Regulatory Techniques in Consumer Protection: A Critique of European Consumer Contract Law (May 2012). University of Chicago Institute for Law & Economics Olin Research Paper No. 598.

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