Robin Malloy, ‘Law, Market, and Marketization’

Marketization is a process occurring in many transitional economies as countries seek to adjust their legal systems to facilitate broader market participation while expanding global trade. This essay sets out one way of understanding this process by focusing on the relationship among, law, markets, and marketization. It identifies and explains basic legal requirements for marketization and links these to a need to transform legal thinking by integrating a greater understanding of economics into both law and public policy.

Malloy, Robin Paul, Law, Market, and Marketization (Jan 15, 2017). 1 University of Bologna Law Review (issue 2) 166.

Zachary Liscow, ‘Is Efficiency Biased?’

The most common underpinning of economic analysis of the law has long been the goal of efficiency (ie, choosing policies that maximize people’s willingness to pay), as reflected in economic analysis of administrative rulemaking, judicial rules, and proposed legislation. Current thinking is divided on the question whether efficient policies are biased against the poor, which is remarkable given the question’s fundamental nature. Some say yes; others, no.

I show that both views are supportable and that the correct answer depends upon the political and economic context and upon the definition of neutrality. Across policies, efficiency-oriented analysis places a strong thumb on the scale in favor of distributing more legal entitlements to the rich than to the poor. Basing analysis on willingness to pay tilts policies toward benefitting the rich over the poor, since the rich tend to be willing to pay more due to their greater resources. But I also categorize different types of polices and show where vigilance against anti-poor bias is warranted and where it is not, with potentially far-reaching implications for the policies that judges, policymakers, and voters should support.

Liscow, Zachary D, Is Efficiency Biased? (August 14, 2017).

‘The Discreet Charm of Conveyancing on the Blockchain’

Jeanne L Schroeder, Bitcoin and the Uniform Commercial Code, 24 University of Miami Business Law Review 1 (2016). When Adam Levitin and I taught The Law of Money seminar a year ago, not one student chose to write about bitcoin. We congratulated ourselves on drawing young people hip enough to ignore the hype emanating from googly-eyed technophiles and smug pundits, and beefed up the readings on silver in 18th century China. The rude awakening came last spring, when bitcoin gobbled up half the class and forced me to wrestle with the problem of legal writing about financial innovation. Jeanne Schroeder’s lovely Bitcoin and the Uniform Commercial Code saved the day. The article reads at first like an old-fashioned doctrinal piece of the sort that have become rare. That would be valuable enough, but the bigger payoff for me was seeing a patient sifting of bitcoin through the UCC illuminate the work of legal institutions at the intersection of finance and technology … (more)

[Anna Gelpern, JOTWELL, 16 August]

Meredith Render, ‘The Concept of Property’

… this Article adopts three positions: (1) that property is conceptually distinct from other areas of law, and that it is numerus clausus that makes it distinct; (2) while numerus clausus embodies a kind of formalism, it is the good kind of formalism, not the bad (as in savaged by the American Realists) kind of formalism; and (3) regardless of whether one agrees with the conceptual account of property, it is important to clarify what that account is and to distinguish it from the confusion that generally surrounds it.

This argument is presented in the following format. Part I introduces the conceptualist/non-conceptualist divide and explicates the necessary point of divergence between the positions. Part II discusses various anti-formalist critiques as they are relevant to the conceptualist account of property. Part III demonstrates how numerus clausus succeeds both in avoiding the pitfalls of formalism generally and in effectuating form restriction. Finally, Part IV offers a conclusion …

Meredith M Render, ‘The Concept of Property’, University of Pittsburgh Law Review volume 78 (Summer 2017).

Leon Anidjar, ‘Globalization of the Law of Specific Performance in Contracts: Israel as a Case Study’

This article discusses the regulation of specific performance in the law of contract around the world, focusing on Israeli law. The relevant law of continental European and Anglo-American jurisdictions in general and the application thereof to contracts in particular are separate and distinct. It is generally believed that Anglo-American and continental legal systems have different points of departure in respect to specific performance. In Anglo-American legal systems specific performance is an equitable remedy only awarded when the remedy of damages is inappropriate. Continental legal systems have established specific performance as the preferred remedy to be awarded for breach of contract …

Anidjar, Leon, Globalization of the Law of Specific Performance in Contracts: Israel as a Case Study (August 10, 2017). 12(1) Journal of Comparative Law (2017).

Colin Mitchell and others, ‘Exploring the potential duty of care in clinical genomics under UK law’

Genome-wide sequencing technologies are beginning to be used in projects that have both clinical diagnostic and research components. The clinical application of this technology, which generates a huge amount of information of varying diagnostic certainty, involves addressing a number of challenges to establish appropriate standards. In this article, we explore the way that UK law may respond to three of these key challenges and could establish new legal duties in relation to feedback of findings that are unrelated to the presenting condition (secondary, additional or incidental findings); duties towards genetic relatives as well as the patient and duties on the part of researchers and professionals who do not have direct contact with patients. When considering these issues, the courts will take account of European and international comparisons, developing guidance and relevant ethical, social and policy factors. The UK courts will also be strongly influenced by precedent set in case law.

Colin Mitchell, Corrette Ploem, Victoria Chico, Elizabeth Ormondroyd, Alison Hall, Susan Wallace, Michael Fay, Deirdre Goodwin, Jessica Bell, Simon Phillips, Jenny C Taylor, Raoul Hennekam, Jane Kaye, Exploring the potential duty of care in clinical genomics under UK law, Medical Law International. First Published August 14, 2017.

Fennell and McAdams, ‘Inverted Theories’

This essay makes the case for ‘inverting’ popular versions of certain theories widely used in legal analysis. Inversion begins with the observation that the assumptions underlying a given theory are substantively false. But rather than reject the theory outright, the theory inverter sees something valuable in the structure of the theory’s logic, and looks to extract the implications of the theory given a recognition that the assumptions are false. An understood example is the Coase Theorem, which in its popular formulation holds that: If transaction costs are zero, an efficient result will always be reached regardless of the initial allocation of entitlements. Because the zero transaction cost assumption is wildly unrealistic – a fact Coase emphasized from the outset – the inverted version of the theory is: Because transaction costs are positive, the initial allocation of entitlements does generally matter to efficiency. In this essay, we explore the usefulness of a similar inversion of four other theories frequently employed in legal analysis: Robert Nozick’s entitlement theory of distributive justice, the Tiebout Hypothesis, Louis Kaplow and Steven Shavell’s tax and transfer principle of redistribution, and the Prisoners’ Dilemma. In all of these cases, we submit, the better basis for policy is the inverted version of the theory that puts the false assumptions at center stage. We conclude by generalizing the lessons of these four examples and discussing why the implausibly ‘uninverted’ versions of these theories remain popular.

Fennell, Lee Anne and McAdams, Richard H, Inverted Theories (August 11, 2017).

Julian Sempill, ‘The Lions and the Greatest Part: The Rule of Law and the Constitution of Employer Power’

On the limited government conception of the Rule of Law, it is axiomatic that the state may only act for the public good according to law, and not arbitrarily, on pain of forfeiting its authority. That axiom is a great legacy of the seventeenth and eighteenth centuries’ anti-absolutist revolutions. The same period yielded another axiom, seldom noticed though nonetheless momentous. It is the belief, usually tacit, that the Rule of Law should not address the potentially arbitrary power of employers. This Article explores the origins of that axiom in the work of John Locke, one of the fountainheads of the limited government tradition. According to the way of seeing power that Locke propagated, there seems to be no reason to wonder whether the constitution of the modern employment relationship is hospitable to arbitrary power, in the limited government sense. Equally, there seems to be no point in asking whether the legitimacy of the employment relationship should depend upon its being constituted according to limited government constraints. However, as I demonstrate, such impressions are at odds with key moral and empirical features of Locke’s own analysis. Those tensions represent a challenge not only for Locke’s analysis, but also for the liberal Rule of Law project that Locke helped to found. It is a challenge that the tradition is yet to address.

Sempill, Julian A, The Lions and the Greatest Part: The Rule of Law and the Constitution of Employer Power (May 11, 2017). Hague Journal on the Rule of Law – Special Issue: History of the Rule of Law (2017, forthcoming) .

Paula Giliker, ‘A Revolution in Vicarious Liability: Lister, the Catholic Child Welfare Society Case and Beyond’

This paper examines developments in vicarious liability in England and Wales and the extent to which revelations of child sexual abuse have triggered fundamental changes to private law. Starting with Lister v Hesley Hall [2001] UKHL 22, it considers how the law has changed, but also critically appraises the development of a ‘modern theory of vicarious liability’ affirmed by the UK Supreme Court in two major decisions in 2016. With the best of intentions, by extending vicarious liability, has the Lister revolution reduced the rationale of vicarious liability to a mere risk redistribution exercise?

Giliker, Professor Paula, A Revolution in Vicarious Liability: Lister, the Catholic Child Welfare Society Case and Beyond (August 10, 2017). To be published in S Worthington, A Robertson and G Virgo (eds), Revolution and Evolution in Private Law (Hart Publishing, 2017) (forthcoming).

Herwig and Simoncini, ‘Risk, Precaution, Responsibility, and Equal Concern’

Systemic risks are risks produced through interconnected non-wrongful actions of individuals, in the sense that an individual’s action is a negligible cause of the risk. Due to scale effects of interaction, their consequences can be serious but they are also difficult to predict and assess via a risk assessment. Since we can have good reason to engage in the interconnected activities giving rise to systemic risk, we incur a concurrent collective responsibility to ensure that the risks are fairly distributed and well regulated. James argues that fairness in this context requires taking reasonably available precautions ensuring for each risk-bearer a favourable ratio of expected benefits over expected losses. In sections 2 and 3 we argue that such a conception of fairness applies but only on the condition that the systemic risks created are irreversible risks and that the general background conditions of justice are imperfectly fair. When risks are reversible, compensatory justice can correct for unfairness in risk imposition. Where risks are irreversible, compensatory justice necessarily fails, giving rise to a collective responsibility to regulate fairly ex ante. Additionally, where background conditions of justice are fully fair and the systemic risk is well understood, risk bearers can be said to have consented to the systemic risk. If they are not fair, we argue that the primary political obligation should lie in fixing the fairness of the backgrounds of justice. A related reason for addressing the general background conditions of fairness is that James’ account of fairness in systemic risk imposition encounters a baseline problem. If expected risks and benefits are calculated again an unfair historic background condition, systemic risk imposition would not be fully fair. Section 4 shows why differences in evidentiary uncertainty as to probability and levels of harm and effective responses require a normatively appropriate response in the form of additional precautions. We show that the evidentiary standards set for risk-based cost-benefit analysis have a connection with deontology because they express a postulate of equal treatment in formal terms. Systemic risks can have different possible degrees of epistemological certainty due to factors of social and natural origin, such as more available research funding or higher degrees of complexity for some systemic risks but not others. These differences have to be mitigated by taking even greater precautions in difficult-to-research systemic risks.

Alexia Herwig and Marta Simoncini, Risk, Precaution, Responsibility, and Equal Concern, volume 30, issue 3, pages 259–272, September 2017.