Matteo Fornasier, ‘The Impact of EU Fundamental Rights on Private Relationships: Direct or Indirect Effect?’

Traditionally, the primary goal of fundamental rights has been to limit the power of the state over individuals. However, it is undisputed in most legal orders today that fundamental rights also have an impact on the relationship between private parties. The present paper looks at how the fundamental rights guaranteed at the level of EU law may affect private law relationships. In particular, the paper analyzes whether EU fundamental rights have direct or indirect effect in private relations, that is to say, whether they are, as such, binding on private parties or whether they impose obligations on individuals only through the medium of an implementing act. It will be shown that, contrary to what has been written by a number of authors, this question actually matters in practice, especially in the context of the social rights guaranteed by the Charter of Fundamental Rights of the European Union. Special attention is devoted to the more recent case law of the CJEU, which in the view of some commentators supports the notion of direct horizontal effect.

Fornasier, Matteo, The Impact of EU Fundamental Rights on Private Relationships: Direct or Indirect Effect?. European Review of Private Law (ERPL), Vol 23, No 1, pp 29-46, 2015; Max Planck Private Law Research Paper No 15/9.

‘The Supreme Court on Public v Private Law’

“While we debate the nature of the distinction – or the lack thereof – between public and private law, perhaps we should take note that the US Supreme Court has recently decided the issue. Well, not by a long shot, of course, but in Teva Pharmaceuticals USA, Inc v Sandoz, Inc, 135 S Ct 831 (2015), justices engaged in spirited debate over the extent to which the interpretation of patent claims should be viewed as more analogous to the interpretation of private ‘written instruments such as deeds and contracts’ than to the interpretation of statutes. Id at 840. The dissenters in Teva explicitly linked this question to a traditional distinction between ‘ “core” private rights’ and ‘ “public rights'”, id. at 848 n 2 (Thomas, J, dissenting) …” (more)

[John Golden, New Private Law, 27 May]

Seminar: Vicarious Liability and Non-delegable Duties: Bloomsbury Publishing, London, 25 September 2015

“This timely seminar run by the editors of Journal of Professional Negligence will examine the current state of vicarious liability and non-delegable duties in the light of the Supreme Court decisions in Various Claimants v Catholic Child Welfare Society and Woodland v Essex County Council and discuss the fundamental questions raised by those decisions, and their implications in both the public and private law context …” (more)

Doctoral Students / Postdoctoral Researchers at Max-Planck-Institute for European Legal History, Frankfurt/Mai in Germany – closing date 12 June 2015

“We are looking to recruit up to six Doctoral Students and five Postdoctoral Research Associates from 1 October 2015 or as soon as possible thereafter
for the following research fields in the department of Professor Stefan Vogenauer: (1) Legal Transfer in the Common Law World; (2) Legal History of the European Union … Your research will turn on (1) the development of rules, principles, doctrines and institutions of English law outside England, for example in selected jurisdictions of the British Empire; or (2) the legal history of selected areas of EU law, particularly in their interaction with the legal systems of the member states. You will publish your findings and actively participate in the research activities of the Institute under the guidance of Professor Vogenauer …” (further details for Doctoral Students and for Postdoctoral Researchers)

‘Contract Law Present and Future: A Symposium to Honor Professor Charles L Knapp on Fifty Years of Teaching Law’

Hastings Law Journal, Volume 66, Issue 4 (May 2015) – Symposium issue – online here.

Carol L Chomsky, ‘Casebooks and the Future of Contracts Pedagogy’

Thomas W Joo, ‘Under the Sun: Casebooks and the Future of Contracts Teaching’

William J Woodward, Jr, ‘Contraps’

Jay M Feinman ‘The Duty of Good Faith: A Perspective on Contemporary Contract Law’

Emily MS Houh, ‘Sketches of a Redemptive Theory of Contract Law’

Peter Linzer, ‘Contract as Evil’

Hazel Glenn Beh, ‘Curing the Infirmities of the Unconscionability Doctrine’

David Horton, ‘Contractual Indescendibility’

Charles L Knapp, ‘Is There a “Duty to Read”?’

Magda Raczynska, ‘An Uneasy Case of Multiple Tracing Claims in English Law’

This paper looks at issues arising in relation to multiple claims contingent on tracing and following. Where a person grants a security interest in an asset in favour of a lender and subsequently sells the asset to a third party without the secured creditor’s consent, a question arises whether the secured creditor may be able to claim both the sale proceeds and the original asset. This paper explores how English law deals with this problem. Unlike in a number of jurisdictions which implemented Personal Property Security Acts, no statute in English law provides an answer to this question. In addition, the judicial guidance is sparse. An existing view seems to be that the secured creditor cannot claim both the traceable proceeds and the original asset because the remedies are inconsistent although the basis for this inconsistency has not been explored. This paper fills the gap.

Raczynska, Magda, An Uneasy Case of Multiple Tracing Claims in English Law (January 2, 2015).

Richard Ausness, ‘Sherlock Holmes and the Problem of the Dead Hand: The Modification and Termination of “Irrevocable” Trusts’

This Article is about the modification and termination of so-called ‘irrevocable’ trusts. A trust may be made irrevocable at the time of its creation or it may become so at a later time. A testamentary trust is one that is embodied in a will and becomes effective at the testator’s death. Since the testator will be dead by the time the trust becomes effective, he will not be in a position to modify or revoke it. For the same reason, a revocable trust will become irrevocable when the settlor dies or when the power to revoke is released. Finally, an inter vivos trust may be irrevocable when it is first created if the settlor disclaims the right to revoke or modify the trust. Although these types of trusts are irrevocable as far as the settlor is concerned, they can sometimes be modified or terminated by others. This Article will examine the various ways in which irrevocable trusts can be modified or terminated. It will also consider the potential conflicts that may arise when beneficiaries desire to terminate the trust prematurely or change its terms in some significant way.

Ausness, Richard C, Sherlock Holmes and the Problem of the Dead Hand: The Modification and Termination of ‘Irrevocable’ Trusts (May 15, 2015). Quinnipiac Probate Law Journal, Vol 28, No 3, 2015.

Alexander Wulf, ‘Institutional Competition of Optional Codes in European Contract Law’

The Common European Sales Law (CESL) is the Commission’s most recent policy initiative for European contract law. It aims to address the problem that differences between the national contract laws of the Member States may constitute an obstacle for the European Internal Market. This paper develops a model of the institutional competition in European contract law and uses it to addresses the question as to whether an optional European contract code and the CESL are economically desirable for European contract law. To do so I examine the transaction costs involved in the process of choosing an applicable law that European businesses face when they conduct cross-border transactions in the European Internal Market. I then describe how these transaction costs shape the competitive environment, i.e. what I refer to as the ‘European market for contract laws’ in which the contracting parties choose a law to govern their cross-border contracts. Having identified this environment and the competitive forces operating within it, I propose a model, the ‘Cycle of European Contract Law’. I use this model to analyze the competitive processes that take place in the European market for contract laws. Based on my results I make recommendations for the optimal implementation of an optional European contract code and the CESL in European contract law.

Wulf, Alexander J, Institutional Competition of Optional Codes in European Contract Law (March 28, 2014). European Journal of Law and Economics, Vol 38, No 1, 2014.

Just published: Charles Fried, Contract as Promise – A Theory of Contractual Obligation, 2nd ed

“… This second edition retains the original text, and includes a new Preface. It also includes a substantial new essay entitled ‘Contract as Promise in the Light of Subsequent Scholarship — Especially Law and Economics’ which serves as a retrospective of the work accomplished in the last thirty years, while responding to present and future work in the field.”

Charles Fried, Contract as Promise – A Theory of Contractual Obligation. Second Edition, OUP USA, 224 pages, 978-0-19-024016-5, May 2015.

‘The Bundle of Sticks: Is There Anything It Can’t Do?’

“Last week, the Supreme Court decided Henderson v United States. Justice Kagan’s opinion for a unanimous court holds that a court can use its equitable powers to order the government to transfer a convicted felon’s firearms to a third party as long as the court is satisfied that the recipient will not give the felon control over the guns. (Under 18 USC § 922(g), it is unlawful for a felon to possess a firearm.) As reflected in the 9-0 result and the skepticism of the Justices about the government’s arguments for why a flat-out refusal to allow the felon any choice of transferee, the opinion might be regarded as an unremarkable bit of criminal law or statutory construction …” (more)

[Henry Smith, New Private Law, 21 May]