Feldthusen, Green, Goldberg and Sharkey, ‘Product Liability in North America’

This book chapter provides an overview of the rules governing liability for product-related injuries in the US and Canada, as well as the context in which those rules operate. Included are discussions of the rationales for, and the development of, the US doctrine of strict products liability, and the application of strict products liability and negligence doctrines to hypothetical cases.

Feldthusen, Bruce and Green, Michael D and Goldberg, John CP and Sharkey, Catherine M, Product Liability in North America (January 2, 2017) in Product Liability: Fundamental Questions in a Comparative Perspective, (Eds) Helmut Koziol, Michael D Green, Mark Lunney, Ken Oliphant, Lixin Yang, Walter de Gruyter GmbH & Co KG, 2017; ISBN 9783110547559.

Sarah Lawsky, ‘A Logic for Statutes’

Case-based reasoning is, without question, a puzzle. When students are taught to ‘think like lawyers’ in their first year of law school, they are taught case-based common-law reasoning. Books on legal reasoning are devoted almost entirely to the topic. How do courts reason from one case to the next? Is case-based reasoning reasoning from analogy? How should case-based reasoning be modeled? How can it be justified?

In contrast, rule-based legal reasoning (as exemplified in much statutory reasoning) is taken as simple in legal scholarship. Statutory interpretation – how to determine the meaning of words in a statute, the relevance of the lawmakers’ intent, and so forth – is much discussed, but there is little treatment of the structure of statutory reasoning once the meaning of the words is established. Once the meaning of terms is established, statutory reasoning is considered, roughly speaking, to be deductive reasoning.

This essay examines the structure of statutory reasoning after ambiguities are resolved and the meaning of the statute’s terms established. It argues that standard formal logic is not the best approach for representing statutory rule-based reasoning. Rather, the essay argues, using the Internal Revenue Code and accompanying regulations, judicial decisions, and rulings as its primary example, that at least some statutory reasoning is best characterized as defeasible reasoning – reasoning that may result in conclusions that can be defeated by subsequent information – and is best represented using default logic. The essay then addresses the practical and theoretical benefits of this alternative understanding of rule-based legal reasoning.

Lawsky, Sarah B, A Logic for Statutes (December 14, 2017). Florida Tax Review, forthcoming; Northwestern Public Law Research Paper No 17-28.

Jane Bambauer, ‘Dr Robot’

This Essay explores whether health and medical AI should be regulated more like doctors than like devices, and what difference it would make. It concludes that although the FDA is poised to heavily regulate AI with demanding premarket testing standards out of concern for public safety, the risks posed from medical AI should be managed by comparing their performance to the costs and error of their nearest substitutes: doctors. AI will out-perform doctors in diagnosis and treatment management; indeed, it already does in some areas. Thus, the public safety concerns that are at the heart of medical device regulations are going to be less relevant in the context of medical AI than some of the other, more ancillary duties that doctors usually owe to their patients and to society: duties to provide confidentiality, to warn, to provide informed consent, and to avoid conflicts of interest. In most cases, treating robots like doctors rather than machines reveals a flaw in the assumptions and fundamental goals of our longstanding rules of professional conduct. This case study can teach us something about future-proofing law: while most legal scholars have focused on adjustments to the law in order to optimize our future robots, it is just as plausible that robots will help us adjust and optimize our aging laws.

Bambauer, Jane R, Dr Robot (December 13, 2017). 51 UC Davis Law Review 101 (2017 forthcoming); Arizona Legal Studies Discussion Paper No 17-28.

Giancarlo Frosio, ‘Why keep a dog and bark yourself? From intermediary liability to responsibility’

This article contextualizes the recent developments in intermediary liability theory and policy within a broader move towards private ordering online. In this context, online intermediaries’ governance would move away from a well-established utilitarian approach and towards a moral approach by rejecting negligence-based intermediary liability arrangements. Miscellaneous policy tools – such as monitoring and filtering obligations, blocking orders, graduated response, payment blockades and follow-the-money strategies, private Domain Name System content regulation, online search manipulation, or administrative enforcement – might reflect this change in perspective. In particular, policy makers – and interested third-parties such as intellectual property rightholders – try to coerce online intermediaries into implementing these policy strategies through voluntary measures and self-regulation, in addition to validly enacted obligations. This process might be pushing an amorphous notion of responsibility that incentivizes intermediaries’ self-intervention to police allegedly infringing activities in the Internet. In this sense, the intermediary liability discourse is shifting towards an intermediary responsibility discourse. Furthermore, enforcement would be looking once again for an ‘answer to the machine in the machine’. By enlisting online intermediaries as watchdogs, governments would de facto delegate online enforcement to algorithmic tools. Due process and fundamental guarantees get mauled by technological enforcement, curbing fair uses of content online and silencing speech according to the mainstream ethical discourse.

Giancarlo F Frosio, Why keep a dog and bark yourself? From intermediary liability to responsibility, International Journal of Law and Information Technology, https://doi.org/10.1093/ijlit/eax021. Published: 14 December 2017.

Lisa Bernstein, ‘Black Hole Apparitions’

… This Comment focuses on the authors’ proposed doctrinal solution to the black hole problem, which seeks to eliminate any inquiry into ‘subjective intent’ when courts are faced with the task of interpreting a black hole. It explores the conceptual and practical challenges of implementing the authors’ proposal and then questions whether legal reform is really needed to deal with the black hole problem. Part I identifies several common ways that standardized contract provisions that are often indistinguishable from true black holes may arise. It suggests that any doctrinal solution to the black hole problem will have to either reliably distinguish real black holes from these relatively common ‘black hole apparitions’, or be desirable when applied to both types of provisions. Part II describes the proposed reform and explores the practical barriers to implementing it. Along the way it also sketches out several alternative avenues for solving the problems evidenced in the pari passu saga. It suggests that these avenues, while more limited in scope than the authors’ proposed reform, may turn out to be more feasible and less costly to implement. Part III questions whether any doctrinal or other solution to the so-called black hole problem can be justified on the basis of the lessons learned from the pari passu saga alone, given that other markets have been able to overcome collective action problems and adopt and amend standard-form contracts through processes that have tended to work more quickly and less contentiously over time. Finally, Part IV concludes by suggesting that the interpretive approach adopted by the Second Circuit in NML might be a passably good response to the black hole problem writ large.

Lisa Bernstein, Black Hole Apparitions, 67 Duke Law Journal Online 102-121 (December 2017).

‘Anthropocentrism in European Private Law and the Case of Ben Nevis’

“It is a truth universally acknowledged that a constitutional state in possession of democratic institutions must have been made by humans. Law more generally is a human construction. Law is considered by some to be even problematically anthropocentric, that is, it would be overtly focused at human interests and thereby neglect the interests of animals and other forms of life on the planet. Yet, in national legal systems across the globe, more and more natural entities get assigned legal personality: rivers, woods, mountains, even Mother Earth herself. This fascinating movement has entered the sphere of European private law …” (more)

[Judges in Utopia, 14 December]

‘A Compelling Case for a General Theory of Contracts’

Robin Kar, Contract as Empowerment, 83 University of Chicago Law Review 759 (2016). Contract in the common law lacks a unifying theory. In this article, Robin Kar offers an intriguing descriptive and normative theory of ‘contract as empowerment’ to explain and harmonize the relationships of core contract doctrines such as consideration, the expectancy damage default rule, and fairness rules such as unconscionability. The result is a highly coherent, aesthetically pleasing, and jurisprudentially compelling account of contract that sets the stage for what promises to be an important scholarly project. Typically, I read articles propounding new general theories of contract with a jaundiced eye. Contract law has long resisted a true general theory because the body of what Kar refers to as ‘true contract’ – eg, excluding other theories of obligation such as promissory estoppel and restitution – suffers from a schizophrenia that extolls private autonomy on the one hand while demanding deference to communitarian interests on the other … (more)

[Daniel Barnhizer, JOTWELL, 14 December]

M Beth Valentine, ‘Constructive “Consent”: A Problematic Fiction’

The law and society occasionally impute consent to an agent despite a clear lack of actual consent. A common type of such ‘fictitious consent’ is constructive consent. In this practice, we treat an agent as if she consented to Φ because she did Ψ. By examining how constructive consent operates in law (monitoring inmate phone calls and blood alcohol concentration testing on unconscious drivers) and daily life (physical contact in public spaces), I show that our treatment of agents in these cases bears no normatively relevant resemblance to consent because it is grounded in values and concerns other than autonomy. Thus, the practice may diminish the very autonomy consent proper seeks to promote. Hiding this potential for conflict creates the risk moral concerns will not be appropriately balanced when deciding on the permissibility of an action. We thus ought to be explicit that such cases don’t involve consent and its common justification.

M Beth Valentine, Constructive ‘Consent’: A Problematic Fiction, Law and Philosophy. First Online: 13 December 2017.