Private Law Theory

Boilerplate Symposium VIII: Daniel Schwarcz on a Tort-Based Approach to Standard Form Contracts

admin — Tue, 21 May 2013 16:17:40 +0000

“This is the eighth in a series of posts reviewing Margaret Radin’s Boilerplate: The Fine Print, Vanishing Rights and the Rule of Law. Daniel Schwarcz is an Associate Professor of Law at the University of Minnesota School of Law. One of the most provocative arguments in Margaret Jane Radin’s bold and compelling book, Boilerplate, is that legal evaluation of contracts of adhesion should employ tort principles rather than contract principles. As Radin acknowledges, this is an idea that I have explored in the specific context of insurance policies. In this guest post, I hope to discuss some of the similarities and differences between Radin’s proposed approach and my own. In some important ways, Radin and I make similar arguments for moving to a tort-based approach to standard form contracts …” (more)

[ContractsProf Blog, 21 May]

Boilerplate Symposium VII: Oren Bar-Gill on Consent Without Reading

admin — Tue, 21 May 2013 13:17:04 +0000

“This is the seventh in a series of posts reviewing Margaret Radin’s Boilerplate: The Fine Print, Vanishing Rights and the Rule of Law. Oren Bar-Gill is a Professor of Law and Co-Director of the Center for Law, Economics and Organization, New York University School of Law. Professor Radin’s book is an eloquent and powerful critique of the fine-term, boilerplate contracts that pervade modern life. Its breadth – in terms of the range of theoretical perspectives that it considers and the different legal policy responses that it discusses – is impressive. In this comment, I focus on the economic analysis of boilerplate. I suggest that Radin’s treatment of this particular perspective, while clearly very useful, is, in some respects, incomplete. In her discussion of the economic analysis of boilerplate, Radin focuses on, and criticizes, a Chicago-school approach that minimizes any concern about boilerplate. But this is only one strand in the economic analysis of form contracts. There is another, perhaps more influential strand that readily acknowledges the challenges that boilerplate presents for market efficiency and for welfare maximization …” (more)

[ContractsProf Blog, 21 May]

Charlie Irvine, ‘The Proposed Apologies Act for Scotland: Good Intentions with Unforeseeable Consequences’

admin — Tue, 21 May 2013 06:26:34 +0000

Abstract:
This article considers Scotland’s proposed Apologies Act in the light of experience in other Common Law jurisdictions. A number of Common Law jurisdictions have passed Apologies Acts in the past 25 years, largely motivated by concerns about a ‘litigation explosion’. The idea seems to be that providing evidentiary protection to apologies will encourage their use, or at least prevent insurers and lawyers from advising against them. Charlie Irvine considers the plausibility of this hypothesis and suggests that the drafters of the Bill face an unresolvable dilemma: blanket protection for apologies may prevent credible evidence from reaching the courts, while narrowing that protection to exclude admissions of fault may stilt apologies and rob them of credibility.

Irvine, Charlie, The Proposed Apologies Act for Scotland: Good Intentions with Unforeseeable Consequences (January 5, 2013). Edinburgh Law Review 17.1 (2013): 84-90.

Steven Feldman, ‘Rescission, Restitution and the Principle of Fair Redress: A Response to Professors Brooks and Stremitzer’

admin — Tue, 21 May 2013 06:24:57 +0000

Abstract:
Brooks and Stremitzer write that a limited rescission model is “excessive” and based on a “misunderstanding” of the economic effects of these remedies.Their key premise is that legal authorities have exaggerated the threat to contract stability and other normative values posed by liberal access to rescission. Therefore, the authors posit that rational parties from an ex ante perspective would often bargain for broad rights of rescission even if damages for breach “were fully compensatory and costless to enforce.”

In contrast, I will perform an intensive case law and statutory analysis showing that the law appropriately follows a principle of “fair redress,” which follows a liberal rescission/fair restitution approach. Indeed, the authors’ opposition to reliance and disgorgement is particularly counterproductive because their stance undermines the core policy of rescission and restitution, which is to afford the injured party an equitable remedy.

Feldman, Steven W., Rescission, Restitution and the Principle of Fair Redress: A Response to Professors Brooks and Stremitzer (May 20, 2013). Valparaiso University Law Review, Vol. 47, 2013 (Forthcoming).

Boilerplate Symposium VI: Brian Bix on Democratic Degradation

admin — Mon, 20 May 2013 15:09:35 +0000

“Brian Bix is the Frederick W Thomas Professor for the Interdisciplinary Study of Law and Language at the University of Minnesota Law School. (The following is adapted from a much longer review that will appear in the Tulsa Law Review.) In her important, timely, and provocative book, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law, Margaret Jane Radin offers some scathing observations regarding the motivation and effects of the terms placed in consumer and employee contracts. She argues that the current contracting practices make a mockery of consent, and undermine the rule of law. Radin is clearly correct in her essential claim, that for many contracting parties freedom of contract is less an ideal than a sham, and that boilerplate provisions are being used by companies to circumvent substantive rights and remedies consumers, employees, and other contracting parties would otherwise have …” (more)

[ContractsProf Blog, 20 May]

Gary Chan, ‘Corporate defamation: reputation, rights and remedies’

admin — Sun, 19 May 2013 18:36:23 +0000

Abstract:
This paper examines fundamental issues concerning a corporation’s right to sue for defamatory attacks on its reputation, the scope of the right and the remedies available. It first outlines the opposed positions in England and Australia, respectively. It also argues that a corporation, save for a government corporation that exercises governmental functions based on markedly different rationales, should have the right to sue in defamation premised on the concept of corporate reputation as property and for the purpose of vindicating its reputation. On the question of remedies, a corporation should be entitled to recover special damages as reparation for damage to reputation provided they are proved. This paper considers, instead of presumed damages, alternative remedies for vindicating corporate reputation. Finally, it examines the business and non-business reputations of both trading and non-trading corporations in relation to claims for damages.

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Gary KY Chan, Corporate defamation: reputation, rights and remedies. Legal Studies, Volume 33, Issue 2, pages 264–288, June 2013. DOI: 10.1111/j.1748-121X.2012.00258.x.

Richard J Peltz-Steele, ‘The New American Privacy’

admin — Sun, 19 May 2013 07:09:41 +0000

Abstract:
Conventional wisdom paints US and European approaches to privacy at irreconcilable odds. But that portrayal overlooks a more nuanced reality of privacy in American law. The free speech imperative of US constitutional law since the civil rights movement shows signs of tarnish. And in areas of law that have escaped constitutionalization, such as fair-use copyright and the freedom of information, developing personality norms resemble European-style balancing. Recent academic and political initiatives on privacy in the United States emphasize subject control and contextual analysis, reflecting popular thinking not so different after all from that which animates Europe’s 1995 directive and 2012 proposed regulation. For all the handwringing in the United States over encroachment by anti-libertarian EU regulation, a new American privacy is already on the rise.

Peltz-Steele, Richard J., The New American Privacy (May 1, 2013). Georgetown Journal of International Law, Vol. 44, No. 2, 2013.

J Janewa Osei Tutu, ‘Private Rights for the Public Good?’

admin — Sun, 19 May 2013 07:08:05 +0000

Abstract:
The counterfeit medicines discussion is an example of how the use of a turbid rationale for greater intellectual property protections serves sophisticated private interests, while potentially harming the public interest. Counterfeit medicines provide a compelling counter-narrative to the access to medicines’ critique of intellectual property rights. Intellectual property advocates and the pharmaceutical industry have portrayed poor global enforcement of intellectual property rights as contributing to the proliferation of dangerous counterfeit medications. Yet, the deliberate linkage in the literature between weak intellectual property rights and the harms caused by counterfeit medicines serves to justify international treaties, like the recent Anti-Counterfeiting Trade Agreement, that require increased government enforcement of intellectual property rights, even when the public interest justifications seem relatively weak. The counterfeit medicines narrative provides industry with a public interest rationale instead of a profit-oriented rationale for demanding government enforcement of private intellectual property rights. This article advocates a public interest test in order to determine when, and to what extent, government monitoring and enforcement of intellectual property rights is warranted.

Osei Tutu, J. Janewa, Private Rights for the Public Good? (May 17, 2013). Southern Methodist University Law Review, Forthcoming.

Arjya Majumdar, ‘Uniform Commercial Code v. The Vienna Convention on the International Sale of Goods – A Comparative Analysis’

admin — Sun, 19 May 2013 07:06:32 +0000

Abstract:
This paper provides a basic study as to the origins of the UCC and the CISG and a comprehensive enquiry as to how and why they differ in substance and operation. Both of these instruments have been drafted with the sole intention of uniformity in laws. However, the primary difference in the two can be seen at first glance in reference to their area of operation. The CISG is adhered to by countries constituting nearly two-thirds of world trade. That is a ‘success rate’ of 67% approximately. However this, as opposed to the area of operation of the UCC, which has been ratified in forty-nine out of fifty states in the US, give it a ‘success rate’ of 98%. The reason for this is evident in the manner in which multilateral conventions work. Such conventions are the result of negotiations between countries highly diverse in legal systems and beliefs. One major difference that usually arises in the drafting and negotiation stages of any international multilateral treaty is that of Common Law and Civil Law. In fact, as the CISG is based on the UCC, it has a civil law approach. This does not bode well for Common Law countries such as the United Kingdom and India, which are not signatories to the convention. Therefore, while the CISG may have a wider range in terms of geographical magnitude, the success rate of enactment is lower than that of the UCC due to cultural and financial diversity amongst nations, which is bound to be lower in case of states in a federal set-up, such as in the US.

Therefore, there are bound to be certain differences, both fundamental and cosmetic in their processes. The instant paper seeks to provide an understanding as to what those differences are. The paper will be aimed at answering some of the basic and complex questions relating to the UCC and the CISG, which are as follows:
•What are the origins of the UCC and the CISG?
•What have been the issues and problems faced by the UCC and the CISG at the stages of conceptualization, drafting, negotiation and ratification?
•How does the UCC differ from the CISG in substantive law, procedure and in operation?

The arguments in favour of the UCC and the CISG are more or less the same – those relating to uniformity of laws leading to more stability and predictability in commerce. However, there remains the vital issue of ratification. There is a stark difference in the acceptance rates of the two, as will be evident in the paper. One of the main reasons given is the cultural and economic diversity that the CISG has to face. Therefore, it is hypothesised that such multilateral agreements would work best when agreed upon by smaller number of parties.

Majumdar, Arjya B., Uniform Commercial Code v. The Vienna Convention on the International Sale of Goods – A Comparative Analysis (May 18, 2013).

Conway and Stannard, ‘The Emotional Paradoxes of Adverse Possession’

admin — Sat, 18 May 2013 13:34:10 +0000

Abstract:
Property lawyers are generally viewed as a serious lot, not prone to feverish bursts of excitement as we seek comfort and solace in established legal rules and precepts. In the same way, property law disputes tend to have a fairly low profile and fail to capture the public imagination in the same way as, for example, those involving criminal or human rights law. Such apparent indifference might seem a little strange, given the centrality of property in everyday human life and the significance which legal systems and individuals attach to property rights. However, there is one issue which always inflames passions amongst lawyers and non-lawyers alike: the acquisition of land through the doctrine of adverse possession, often described as ‘squatter’s rights’. No property-related topic is likely to light up a radio show phone-in switchboard quite like squatting.

Conway, Heather and Stannard, John E., The Emotional Paradoxes of Adverse Possession (May 16, 2013). (2013) 64 (1) Northern Ireland Legal Quarterly 75-89.