Gregory Klass, ‘Boilerplate and Party Intent’

It is commonly recognized that parties often do not read or understand contract boilerplate they agree to, and that such parties might not intend all the terms in it. Less often noticed are decisions that favor boilerplate over evidence of the parties’ contrary intent for the very reason that it is boilerplate. This article discusses that phenomenon. It identifies decisions in which courts favor boilerplate terms over other evidence the parties’ intent because it is boilerplate, discusses the rules that explain those outcomes, and examines the reasons behind the rules.

A contractual writing, whether individually negotiated and drafted or boilerplate, often displaces other evidence of the parties’ agreement. Plain meaning rules, the parol evidence rule, and the use of formalities can all operate to limit extrinsic evidence of the parties’ intent. But each rule also has special application to boilerplate. Plain meaning rules can serve to generate uniform construction of standard terms or adhesive contracts across multiple transactions. Some authorities suggest that standard terms and adhesive contracts are presumptively integrated, avoiding the standard inquiry into the parties intent to integrate under the parol evidence rule. And the judicial construction of boilerplate language sometimes transforms it into something like a legal formality – words whose legal effect depends on their form rather than their meaning …

Klass, Gregory, Boilerplate and Party Intent (November 4, 2019). Law and Contemporary Problems, forthcoming.

Adam Hofri-Winogradow, ‘The Statutory Liberalization of Trust Law across 152 Jurisdictions: Leaders, Laggards and the Market for Fiduciary Services’

This article reports the findings of the first systematic overview of the statutory liberalization of trust law worldwide. Using a groundbreaking, manually collected, database of the trust legislation of every jurisdiction which has a trust regime respecting 22 trust law variables, I hand coded each jurisdiction’s treatments of each variable since 1925 for their relative liberality. Aggregating all jurisdictions’ scores regarding all variables, I produced a ‘trust liberality score’ for each jurisdiction/year, expressing the extent to which trust law has been liberalized by each jurisdiction by each year.

Results show the United States to be the global leader in trust law liberality: 17 of the 20 jurisdictions which have the most liberal trust laws are American states. Trust law liberalization in the US is a result of the widespread adoption of the Uniform Trust Code, which includes many highly liberal positions, among the states, as well as of many states having followed an offshore dynamic in adopting highly permissive positions in order to draw users from out of state to resident service providers. The trust laws of many American states are more liberal than those of small offshore island jurisdictions. Even the laws of such relatively conservative American states, on trust matters, as New York and California are quite liberal by global standards. Much of the recent global increase in trust law liberality occurred between 1988-2016.

Multivariate regression analysis of U.S. data shows that the statutory liberalization of trust law has had no effect on several indicia for the success of service provision to trusts as a commercial enterprise. It is especially clear that reforms seen as pandering to trust users’ interests at great social cost, such as self-settled spendthrift trusts and perpetual trusts, all in order to create or sustain demand for professional services in the trust context, have had no impact on any of these indicia. As an exception to the general finding of a null result, some findings with marginal statistical significance may show that law reforms which reduced trustees’ exposure to liability and entrenched their entitlement to remuneration led to a decline in their earnings per trust. Those reforms are also weakly associated with an increase in trust income. It is therefore possible that reforms widely seen as preferring trustees over their clients have resulted in trustees providing a better service at lower cost.

Hofri-Winogradow, Adam S, The Statutory Liberalization of Trust Law across 152 Jurisdictions: Leaders, Laggards and the Market for Fiduciary Services (November 14, 2019). Forthcoming, UC Davis Law Review, May 2020.

Giovanni Tuzet, ‘Liability, Pragmatism and Economics’

The article considers the concept of legal liability and shows how pragmatist legal thinkers (1) reshaped it in the light of their philosophical externalism and (2) developed an economic analysis of it that is certainly stimulating but raises some serious concerns. The main characters of this story are Oliver Holmes for the classical pragmatist reshaping of the concept, and Learned Hand and Richard Posner for the more recent economic analysis of it. The paper suggests that, despite those concerns, that pragmatist reshaping was, and still is, welcome.

Tuzet, Giovanni, Liability, Pragmatism and Economics (September 15, 2018). Pravni Vjesnik, vol 34(3-4), 2018, pp 203-217.; Bocconi Legal Studies Research Paper No 3475994, September 2018.

Jonathan Barrett, ‘Moral Rights and Immoral Artists’

The word ‘moral’ used to denote upright behaviour and ‘moral’ to denote certain authorial rights (droit moral), are homonyms: the things signified by the same signifier are different. Because Germany’s moral rights equivalent is the personality right (Persönlichkeitsrecht), the German language does not permit the wordplay employed in the title. Nevertheless, this paper argues that personhood (Persönlichkeit), which is intertwined with the fundamental human rights principle of respect for equal and inherent human dignity, is the critical consideration for both understanding moral rights and engaging with the vexed issue of artworks created by immoral artists. This paper, which should be read as a sample of ongoing research, therefore approaches moral rights from a personhood perspective in order to construct analytical tools for engaging with immoral artists and their artworks.

Barrett, Jonathan M, Moral Rights and Immoral Artists (November 2, 2019). Presented at the Asian Pacific Copyright Association Conference, Wellington, New Zealand, November 2019 .

Ansgar Ohly, ‘A Fairness-Based Approach to Economic Rights’

The economic rights in copyright law received their present shape under different economic circumstances. Unlike in other areas of intellectual property law, there is no infringement test which would limit copyright protection to its proper function. Whereas in US law the broad scope of copyright protection is counterbalanced by the fair use exception, no such flexibility exists in EU law. This paper proposes a more flexible, market-sensitive infringement test. The ‘fairness-based approach’ presented here draws on experiences from trade mark and unfair competition law. It suggests a three-level model consisting of a black list of acts which are prohibited per se if done without the right owner’s consent, a medium level of acts which only trigger an infringement action if a negative effect on the right owner’s market or an unjustified profit of the user is shown, and a broad general clause.

Ohly, Ansgar, A Fairness-Based Approach to Economic Rights (November 5, 2017) in Copyright Reconstructed, PB Hugenholtz (ed), Wolters Kluwer, Alphen aan den Rijn, pp 83-119, 2018.

Tim Murphy, ‘Natural Law and Natural Justice: A Thomistic Perspective’

This chapter offers Thomistic accounts of natural law and natural justice that differ in important respects from other accounts often associated with Aquinas. The discussion begins by considering Aristotle’s taxonomy of justice in the Nicomachean Ethics and adopted by Aquinas in the Summa Theologiae. This view of justice does not emphasise rules or norms laid down by some higher source, as contemporary natural law accounts often do; rather it emphasises what Aristotle calls particular justice: the personal virtue through which individuals are disposed to respect the legitimate claims – that is, the entitlements – of others. This conception of justice differs significantly from the general or social justice that is emphasized in contemporary political philosophy and jurisprudence. According to the interpretation advanced in this chapter, natural justice is what is owed naturally to members of the community – it provides a pre-conventional yardstick for social dealings, independently of formal legal codes or institutions – and Thomistic natural law is primarily an ethical phenomenon that has been consistently misconstrued in voluntarist and positivist accounts of what natural law entails. Instead of the idea that natural law represents some kind of juridical standard, the author insists that Aquinas’s theory of natural law concerns the intrinsic ethical demand on individuals to act reasonably and responsibly.

Murphy, Tim, Natural Law and Natural Justice: A Thomistic Perspective (2019). Research Handbook on Natural Law Theory (Crowe and Lee (eds), Edward Elgar, 2019), 304–325.

Joshua Teitelbaum, ‘Computational Complexity and Tort Deterrence’

Standard economic models of tort deterrence assume that a tortfeasor’s precaution set is convex – usually the non-negative real numbers, interpreted as the set of feasible levels of spending on safety. In reality, however, the precaution set is often discrete. A good example is the problem of complex product design (eg, the Boeing 737 MAX airplane), where the problem is less about how much one spends on safety and more about which combination of safety measures one selects from a large but discrete set of alternatives. I show that in cases where the precaution set is discrete, the problem faced by a tortfeasor under strict liability and negligence is computationally intractable, frustrating their static deterrence effects. I then argue that negligence has a dynamic advantage over strict liability in that negligence can move a tortfeasor’s behavior in the direction of socially optimal care over time more rapidly than strict liability.

Teitelbaum, Joshua C, Computational Complexity and Tort Deterrence (October 25, 2019).

Dan Priel, ‘Two Forms of Formalism’

In this paper I argue that what is called ‘formalism’ is actually two very different views: I call one ‘conceptualism’ and the other ‘doctrinalism’. The former is deductive and ‘philosophical’ whereas the latter is inductive and ‘pragmatic’. While the two views have sometimes been aligned in opposition to certain views they were both in opposition to, they are actually fundamentally at odds with each other. I demonstrate this by identifying eight parameters on which the two are opposed. After presenting the two views, I turn to evaluating the two views. I first argue that conceptualism is indefensible, and that though it enjoys a degree of academic popularity, it has no real existence in legal practice. My conclusion with respect to doctrinalism is different. I argue that it is a viable approach to legal analysis and an attractive one in certain political environments. As part of my evaluation, I compare doctrinalism with legal realism (of Karl Llewellyn’s stripe), and argue that, contrary to popular belief, the two are close to each other, differing mostly in the extent to which the legal system should be open to the influence of popular values. The choice between such views, I conclude, depends more on a given community’s political culture than is a matter to be decided by jurisprudential or linguistic analysis.

Priel, Dan, Two Forms of Formalism (November 4, 2019). Published in Form and Substance in the Law of Obligations 165 (James Goudkamp and Andrew Robertson eds, 2019).

‘Book Review, The Statutory Foundations of Negligence by Mark Leeming (2019)’

The title of this book, The Statutory Foundations of Negligence, may seem surprising to those afficionados of negligence who are used to thinking of it as a common law concept that has been intruded upon by statute in recent years. This timely and significant book discusses not only the historical foundations of negligence in statute, but the present statutory foundations of negligence as expressed in the civil liability legislation which was introduced in Australian states and territories from 2002. This legislation has forced lawyers and academics to recognise that the common law is expressed both in statute and in cases, and Justice Leeming shows this ‘entanglement’ goes further back than many of us recognise and creates a richness that should justly be celebrated, rather than resisted …

Vines, Prue, The Statutory Foundations of Negligence (2019) 41(3) Sydney Law Review 411.

‘Job: Chair in Comparative Law (University of Aberdeen) (Deadline: 13 December 2019)’

“The University of Aberdeen has a job opening for a chair in comparative law. The School of Law at the University of Aberdeen wishes to appoint a Chair in Comparative Law. We will be happy to receive applications from high-quality candidates having any specialism within this broad area …” (more)

[Filip Batsele, ESCLH, 13 November]