Allana and Carroll, ‘Apologies in a Legal Setting: Insights from Research into Injured Parties’ Experiences of Apologies after an Adverse Event’

There is scholarly support for the use of apologies in the settlement of legal disputes and anecdotal evidence of their effectiveness in mediation and other dispute resolution processes. There is also a growing body of empirical psychological research regarding the use and effectiveness of apologies available to inform and guide the practice of lawyers, mediators and other professionals, and judicial officers when apologies arise in legal proceedings. This article critically reviews the research literature concerning the experience of apology recipients and offers a framework for understanding the circumstances in which an apology may contribute to the resolution of a legal dispute.

Alfred Allana and Robyn Carroll, Apologies in a Legal Setting: Insights from Research into Injured Parties’ Experiences of Apologies after an Adverse Event. Psychiatry, Psychology and Law. DOI: 10.1080/13218719.2016.1196511. Published online: 23 June 2016.

‘Thinking About Monitoring’

Veronica Root, Modern-Day Monitorships, 33 Yale Journal on Regulation 109 (forthcoming 2016), available at SSRN. The study of organizational compliance is now proliferating in American law schools. Over the past decade, new courses, new programs, and new scholarship have focused increasing attention on this area. In recognition of the importance of organizational compliance as a free-standing field of inquiry, the American Law Institute has launched the drafting of Principles of the Law, Compliance, Enforcement, and Risk Management for Corporations, Nonprofits, and Other Organizations. This project – and the work it inspires – should advance our understanding of a framework for thinking about organizational compliance. Veronica Root’s work on monitorships, including her most recent piece on Modern-Day Monitorships, is a meaningful contribution to one piece of that framework … (more)

[D Gordon Smith, JOTWELL, 24 June]

‘Brexit – Immediate Consequences on the London Judicial Market’

“One of the major misunderstandings of the Brexit is that it won’t influence London’s importance as a major place of dispute resolution in Europe. Up until now, the adverse consequences of leaving the European Judicial Area have been insufficiently discussed. A first seminar organized by the British Institute for International and Comparative Law and the Max Planck Institute Luxembourg for Procedural Law in May illustrated that the adverse legal consequences will start immediately, even within the transitional period of two years foreseen by Article 50 of the EU Treaty …” (more)

[Burkhard Hess and Marta Requejo-Isidro, Conflict of Laws .net, 24 June]

‘The Future of Property in SIOE’

“I just finished up as President of the Society for Institutional and Organizational Economics (SIOE), which had its annual meeting this year at Sciences Po in Paris (I hosted the conference last year at Harvard when I was President-Elect). As is the custom, I gave a very short address at the conference dinner. My topic was well within the domain of private law: I suggested that the notion of property used in institutional and organizational economics was ironically thin, that institutional analysis could be turned back on property itself, and that this would require continued methodological openness …” (more)

[Henry Smith, New Private Law, 23 June]

Marcus Roberts, ‘Tortious Statements, Vicarious Liability and the “Authority Test”’

This article will argue that an employer should only be liable for its employees’ tortious statements if the employer has actually or apparently authorised the employee to make those statements. Because the victim changes his or her position in reliance upon the tortious statement, the ‘authority test’ as set out in Armagas Ltd v Mundogas SA is preferable to the ‘close connection’ test set out in Lister v Hesley Hall Ltd for determining an employer’s liability. If an employer’s liability is based upon the ‘authority test’, then this liability should properly be viewed as direct, rather than vicarious, liability for its employees’ statements under normal agency principles. This article will argue that the benefits of the New Zealand courts adopting such an approach are coherence and simplicity and that there are no countervailing policy reasons for continuing to decide such cases under vicarious liability.

Roberts, Marcus, Tortious Statements, Vicarious Liability and the ‘Authority Test’ (September 2, 2013). New Zealand Law Review, Volume 28, Number 4, Pp. 625-652, December 2013.

Brooke Coleman, ‘One Percent Procedure’

In this election year, political rhetoric about the one percent is already pervasive, as those with the greatest concentrated wealth prosper and the remaining population stagnates. Because of their affluence, the one percent exercise disproportionate control over political and economic systems. This Article argues that federal civil procedure is similarly a one percent regime. The crème de la crème of the bench and bar, along with equally exclusive litigants, often engage in high-stakes, complex civil litigation. It is this type of litigation that dominates both the elite experience and the public perception of what civil litigation is. This litigation is not particularly common, however; while expensive and well known, it is in the minority. Yet this litigation and the individuals engaged in it have an incongruent influence on how the Federal Rules of Civil Procedure and procedural doctrine develop. They create one percent procedure.

This Article interrogates and connects disparate phenomena related to civil litigation, including the recent discovery amendments and the rise of multidistrict litigation. It demonstrates that the elite — those who are deeply steeped in complex, high-stakes litigation — are setting the agenda and determining the rules for how the entire civil litigation game is played. It further argues that the benefits of a one percent procedure system — notably expertise of the participants — are not worth the costs; indeed, that expertise can be detrimental to the design of a civil litigation system.

As in politics and economics, a system that gives too much control to the one percent risks undervaluing and underserving the remaining ninety-nine. Using social and political science, the Article argues that the homogenous policymaking of one percent procedure creates suboptimal results. The Article concludes that the structures giving rise to one percent procedure must be modified and proposes a set of reforms intended to allow the ninety-nine percent representation in, and access to, the process of constructing our shared civil litigation system.

Coleman, Brooke D, One Percent Procedure (June 13, 2016). Washington Law Review, Vol 91, No 3, 2016.

‘Consultation publique sur la réforme de la responsabilité civile’

“Particuliers, associations, professionnels, universitaires, donnez votre avis! Jean Jacques Urvoas a lancé le 29 avril une consultation publique sur l’avant-projet de loi portant réforme du droit de la responsabilité civile. Réforme du droit de la responsabilité civile. Cette réforme est très attendue et indispensable pour renforcer la lisibilité et la prévisibilité du droit, l’adapter aux enjeux économiques et sociaux actuels, et assurer l’amélioration de l’indemnisation des victimes de dommages. En effet, le droit commun de la responsabilité civile repose pour l’essentiel sur quelques articles du code civil pratiquement inchangés depuis 1804, complétés par une jurisprudence importante. L’avant-projet de loi soumis à consultation constitue la dernière étape de la modernisation du droit des obligations et complète donc l’ordonnance n° 2016-131 du 10 février 2016 portant réforme du droit des contrats, du régime général et de la preuve des obligations …” (plus)

[Ministère de la Justice, April 2016]

‘Making Sense of Mid-Term Modifications of At-Will Employment Contracts’

Rachel Arnow-Richman, Modifying At-Will Employment Contracts, 57 Boston College Law Review (forthcoming 2016), available at SSRN. I’m always pleasantly surprised when I stumble across a piece of scholarship that seeks to solve a doctrinal puzzle in the law. I’m even more pleasantly surprised when the puzzle in question is one that I’ve puzzled over myself. And I’m really pleasantly surprised when the author offers a convincing solution to the puzzle. Those are but three reasons why I like Rachel Arnow-Richman’s article Modifying At-Will Employment Contracts … (more)

[Alex B Long, JOTWELL, 22 June]

Shue Sing Churk, ‘Just Abolish the No Profit Rule’

In 2013, Ernest Lim and Professor Sarah Worthington respectively published two articles in the Law Quarterly Review and the Cambridge Law Journal. Both articles engaged in comprehensive discussions of the rule laid down in Regal (Hastings) Ltd v Gulliver, commonly known as the no-profit rule, the rule that prohibits a director from making profits out of her fiduciary position. They took different approaches in attempting to rationalise this murky if not inconsistent area of law. I argue in this article that these attempts, albeit in the right direction as is any attempt that seeks to place limit on the scope of the no-profit rule, are unable to remedy the defects of the rule that may disincentivise directors from acting in the best interest of the company. I use practical examples to show that the rule can have the effect of harming the interest of the company, the exact opposite of the purpose for which the rule was designed.

Churk, Shue Sing, Just Abolish the No Profit Rule (July 2015). International Company and Commercial Law Review 26, no 7 (2015): 244–251.

Call for papers: UNCITRAL 50th Anniversary Congress – Vienna, Austria, 4-6 July 2017

The United Nations Commission on International Trade Law is hosting a 3 day Congress to celebrate its 50th anniversary and explore new directions in cross-border commerce: Modernizing International Trade Law to Support Innovation and Sustainable Development (Vienna, Austria, 4-6 July 2017). Abstracts and paper proposals are invited from researchers, scholars and practitioners on any aspect of the substantive rules governing international commercial transactions. The deadline for submitting abstracts is 9 September 2016 (more).