Waitzer and Sarro, ‘Protecting Reasonable Expectations: Mapping the Trajectory of the Law’

The doctrine of reasonable expectations has evolved into a powerful tool for judicial and regulatory activism and, as a result, a bellwether for the trajectory of the law. The concept has broadened — both in scope and in the range of potential claimants. Yet it has been used to achieve goals that are remarkably consistent across different areas of law: first, to require powerful actors to treat stakeholders fairly, which entails treating them with honesty and avoiding actions that would impose unnecessary or disproportionate costs on them; second, to uphold the integrity of legal or regulatory regimes by remedying actions that frustrate their purpose by allowing an actor to avoid the obligations associated with these regimes. The doctrine is particularly relevant to contemporary society, where legislative processes have become constrained by, among other things, the short-term incentives that inform and motivate political processes. As the tension between public expectations and legislative responsiveness becomes more severe, a growing role has emerged for our courts and independent regulatory bodies to use reasonable expectations to forge new legal pathways. This article outlines what appears to be an accelerating trend — first by reflecting on the nature of ‘reasonable expectations’ and then exploring how the doctrine has been and is likely to be applied.

Waitzer, Edward J and Sarro, Douglas, Protecting Reasonable Expectations: Mapping the Trajectory of the Law (March 26, 2016). Canadian Business Law Journal, Vol 57, No 3, pp 285-313, March 2016.

‘Unwinding failed contracts’

“The Wilson Memorial Lecture was given yesterday by Sonja Meier of the University of Freiburg on the theme of ‘Unwinding failed contracts – new European developments’. It was a brilliant performance, beautifully delivered, perfectly timed and, above all, cogently argued. Taking the Swiss draft Obligationrecht 2020 and the recent reform of the French law of obligations as her starting points the speaker explored …” (more)

[Eric Clive, European Private Law News, 28 April]

‘No Contractual Duty of Good Faith in Texas’

“In spite of most jurisdictions reading a duty of good faith and fair dealing into all contracts, a Fifth Circuit Court of Appeals has held that it is unlikely that the Texas Supreme Court would find such a duty to exist in Texas. Wow. Additionally, the court found that no fiduciary relationship between a university student and his/her university faculty and other representatives. Section 205 of the Restatement (Second) of Contracts states that ‘[e]very contract imposes upon each party a duty of good faith and fair dealing in its performance and enforcement’ …” (more)

[Myanna Dellinger, ContractsProf Blog, 28 April]

Reid Weisbord, ‘A Copyright Right of Publicity’

This Article identifies a striking asymmetry in the law’s disparate treatment of publicity-rights holders and copyright holders. State-law publicity rights generally protect individuals from unauthorized use of their name and likeness by others. Publicity-claim liability, however, is limited by the First Amendment’s protection for expressive speech embodying a ‘transformative use’ of the publicity-rights holder’s identity. This Article examines for the first time a further limitation imposed by copyright law: when a publicity-rights holder’s identity is transformatively depicted in a copyrighted work without consent, the author’s copyright can produce the peculiar result of enjoining the publicity-rights holder from using or engaging in speech about her own depiction. This Article offers novel contributions to the literature on copyright overreach and: (1) identifies a legal asymmetry produced in the interplay of publicity rights, copyright law, and the First Amendment; (2) examines the burdens on constitutionally protected speech, autonomy, and liberty interests of publicity-rights holders when copyright law prevents or constrains use of their own depiction; and (3) outlines a framework for recognizing a ‘copyright right of publicity’ to exempt the publicity-rights holder’s use from copyright infringement liability.

Notably, this Article contributes uniquely to the literature by including a special first-person narrative from an internationally recognized celebrity whose persona was prominently depicted without prior notice or consent in a wide-release feature film.

Weisbord, Reid K, A Copyright Right of Publicity (May 1, 2016). Fordham Law Review, Vol 84, No 6, 2016.

Edwin Fruehwald, ‘Bringing Legal Education Reform into the First Year: A New Type of Torts Text’

Legal education reform has reached the first year of law school. Reform of the first year of law school is vital because it lays the foundation for the second and third years, as well as legal practice. Of course, changes to the first year must be done properly, following the latest research in how students learn. You can’t just add a few skills experiences to the first year and hope that will work. The first year must start with the basics so that students are ready to solve more advanced problems. In other words, the first year needs to emphasis the legal reasoning process, how it is applied, and simple problem solving.

An important part of reforming the first year is to adopt text books that have been written with the new purpose of the first year in mind and that are based on general learning theory. This article discusses the lessons I learned about writing texts for first-year students from writing an experiential torts text, A Companion to Torts: Think Like a Torts Lawyer (2015). I believe that the keys to writing a first-year text are to 1) start the students out slowly and explicitly, 2) break legal reasoning (thinking like a lawyer) into its essential parts (deductive reasoning, reasoning by analogy, distinguishing, synthesis, and policy-based reasoning) and have students do exercises in each of these types of legal reasoning, 3) teach students how to apply law to facts, and 4) have the students solve increasingly harder problems using these skills.

The first half of this paper will present the theoretical basis for the exercises I used in my torts text. Part II will discuss the neurobiology of learning, which must be the foundation for any effective approach to education. Part III will examine the effectiveness of particular learning techniques in relation to the neurobiology of learning. Part IV will lay out ‘Bloom’s Taxonomy’, a description of the six stages of cognitive learning. The second half of this paper will then present how I wrote my torts text, based on the theory of the first half. Part V will discuss how to organize the text. Part VI will give the types of exercises that should be included in such a book. These exercises comprise retrieval exercises, issue-spotting exercises, legal reasoning exercises on rule-based reasoning, analogical reasoning, distinguishing cases, rule synthesis, and policy-based reasoning, reflection exercises, metacognitive exercises, professionalism and professional identity exercises, and extended problem-solving exercises.

Fruehwald, Edwin S, Bringing Legal Education Reform into the First Year: A New Type of Torts Text (April 25, 2016).

Matthew Bodie, ‘Employment as Fiduciary Relationship’

Under traditional agency law doctrine, employees are agents of their employers and owe an agent’s concomitant fiduciary duties. Employers, in turn, are merely principals and have no corresponding fiduciary duties. A new wave of thinking has unsettled this approach by concluding that only high-level employees have fiduciary responsibilities to their employers. Taking this controversy as a starting point, this Article reconceives the employment relationship as a mutual fiduciary relationship in which both employers and employees are fiduciaries of one another. Even though current law does not consider employers to be fiduciaries of their employees, employers have long had significant statutory and common-law responsibilities toward their employees that reflect a fiduciary character. Looking to these responsibilities as well as research on the theory of the firm, the Article argues that employers are fiduciaries and must refrain from opportunism, especially when employees have no voice in governance. However, in an organizational setting where employees do participate in governing the firm, it would be appropriate to recalibrate the reciprocal fiduciary duties to require a balanced set of obligations between all parties.

Bodie, Matthew T, Employment as Fiduciary Relationship (April 25, 2016). Georgetown Law Journal, 2017.

Goldberg and Zipursky, ‘The Myths of Macpherson

For a symposium marking the centenary of Macpherson v Buick, we identify three common characterizations of Cardozo’s famous opinion that purport to explain its importance. Unfortunately, each of these characterizations turns out to be a myth. MacPherson is worthy of celebration, but not because it recognizes that negligence law’s duty of care is owed to the world, nor because it displays the promise of an instrumental, policy-oriented approach to adjudication, nor because it embraces a nascent form of strict products liability. These myths of MacPherson reflect deep misunderstandings of tort law, and of Cardozo’s distinctively pragmatic approach to adjudication. Ironically, although they have been largely fostered by progressives, the myths lend support to the cause of modern tort reform. By contrast, an accurate appreciation of MacPherson’s virtues permits an understanding of negligence, tort law, and common law adjudication that provides grounds for resisting regressive reforms.

Goldberg, John CP and Zipursky, Benjamin C, The Myths of Macpherson (April 26, 2016). 9 Journal of Tort Law (2016, forthcoming); Fordham Law Legal Studies Research Paper No 2770725.

Goldberg and Zipursky, ‘Triangular Torts and Fiduciary Duties’

When a professional is negligent in providing services to her client or patient, third parties are sometimes harmed. ‘Triangular torts’, as we call them, are negligence claims brought against professionals by such third parties. One common example involves a father suing a therapist for inducing his daughter to have false memories of childhood abuse, thereby causing him emotional harm. Another involves a nephew suing a lawyer for incorrectly drafting his aunt’s will, thereby causing him financial loss. Despite the general decline of privity limits on negligence liability, courts frequently reject triangular tort claims, ruling that professionals do not owe duties of care to third parties. In this chapter, we explain when such rulings are warranted — and when they are not. The answer turns on whether the recognition of a duty of care to the third party is consistent with the professional’s fiduciary duty of loyalty to the client or pat

Goldberg, John CP and Zipursky, Benjamin C, Triangular Torts and Fiduciary Duties (April 26, 2016) in Andrew Gold and Paul B Miller, Contract, Status and Fiduciary Law (2016, forthcoming); Fordham Law Legal Studies Research Paper No 2770722.

Dagan and Dorfman, ‘Against Private Law Escapism: Comment on Arthur Ripstein, Private Wrongs

Can a comprehensive theory of tort law evade the ultimate test of our moral intuitions (or reflective equilibrium)? We shall argue, first, that Ripstein’s illuminating Private Wrongs, including in particular his organizing distinctions between misfeasance and nonfeasance, between relation and comparison, and between horizontal and vertical justice, cannot escape that test; and, second, that his theory fails to meet such a test.

The Comment proceeds in four stages. We first lay out the basic structure of Ripstein’s theory of the justice of tort law and the nature of the argument he deploys in developing this theory (Part I). We then suggest that, and explain why, his effort to derive the content of the justice of tort law by taking legal doctrine at face value must fail (Part II). The next two stages of the argument consider an alternative reading of Private Wrongs (Part III) and a broader assessment of the justice of tort law against the background of public law (Part IV).

Dagan, Hanoch and Dorfman, Avihay, Against Private Law Escapism: Comment on Arthur Ripstein, Private Wrongs (April 25, 2016).

Luppi and Parisi, ‘Optimal liability for optimistic tortfeasors’

As Alicke and Govorun (The self in social judgment, Psychology Press, New York, 2005, p 85) observed, ‘most people are average, but few people believe it’. Optimism and other forms of inflated perception of the self lead parties to exercise suboptimal precautions when undertaking risky activities and often undermine the incentive effects of tort rules. In this paper, we show that the presence of optimism undermines several critical assumptions, upon which law and economics scholars have relied when modeling the incentive effects of tort law. We construct a model representing the incentives of ‘optimistic’ tortfeasors and victims, and consider mechanisms for mitigating the effects of biased decision-making. We show that in the presence of optimism, comparative negligence rules are preferable to contributory negligence rules (ie, the traditional equivalence between contributory and comparative negligence does not hold). Further, we discover the surprising conclusion that the most effective way to correct optimism may often simply be to ‘forgive’ it, shielding optimistic individuals from liability, rather than holding them liable for the harms they cause.

Barbara Luppi and Francesco Parisi, Optimal liability for optimistic tortfeasors. European Journal of Law and Economics, June 2016, Volume 41, Issue 3, pp 559-574.