Lionel Smith, ‘Sources of Private Rights’

Much has been written in both the common law and the civil law about the ‘sources’ of rights or of obligations. Jurists have attempted to classify and organize these sources as a way of shedding analytical light on the different kinds of rights that exist in private law. Building on recent scholarship in Quebec civil law, the author argues that the idea of the source of a private right is deeply ambiguous, and that the failure to see this has bedevilled attempts to classify the sources of rights. Just as every effect has multiple causes, every right has multiple sources. The author also argues that a similar ambiguity inhabits the common law’s idea of a ‘cause of action’. Distinguishing between the different senses of the ideas of ‘source’ and ‘cause of action’ helps to clarify a number of debates in private law theory.

Smith, Lionel, Sources of Private Rights (March 21, 2020). Forthcoming, S Degeling, M Crawford, N Tiverios, eds, Justifying Private Rights (Hart, 2020).

John Langbein, ‘Because Property Became Contract: Understanding the American Nonprobate Revolution’

In modern American practice the state-operated court system for transferring wealth on death, called probate, is being displaced. The wealth-transfer process has been increasingly privatized, conducted now mostly in the back offices of financial institutions rather than in the probate courts. Driving this privatization of wealth transfer has been a profound change in the nature of personal wealth, away from land and tangibles into contract claims against financial intermediaries such as banks, securities issuers, mutual funds, brokerage houses, insurers, and pension funds. Financially intermediated wealth has the distinctive attribute that it arises from the administrative processes of these institutions, work that entails recurrent transactions and communications. Once a staff is in operation to perform such tasks, extending its role to include the transfer of account balances on death has been easy. The account owner shunts the asset away from probate by completing a beneficiary designation form directing the institution to distribute the account asset in designated shares to designated persons. The emergence of this free-market transfer system has disrupted the application of a variety of the default features of the probate process, most ominously, the creditor protection function.

Langbein, John H, Because Property Became Contract: Understanding the American Nonprobate Revolution (March 23, 2020).

Taisu Zhang, ‘Land Law in Chinese History’

Although land law or ‘real property law’ is but one of several branches of what scholars commonly call ‘economic law’, or laws that regulate everyday economic activity, its history has drawn, over the past several decades, an unusually large amount of attention from legal theorists, economists, and comparative scholars of all methodological orientations. This has been especially true within the field of Chinese legal history: few scholars outside the field have any clear sense of pre-modern, early modern, or even modern Chinese family law, the law of personal injury, or even criminal law, but a much larger number will likely have some impression of historical Chinese land law, and may even have an educated opinion about it. This is not because land law was any more important to everyday socioeconomic life than those other bodies of law, but rather because land law has played a much larger role in theoretical and comparative scholarship, particularly in scholarship that seeks to explain global economic divergence – specifically, the divergence between China and the West in the 18th and 19th Centuries. Although this literature has perpetrated its share of myths about Chinese property institutions, much progress has been made over the past few decades, to the point where something approaching an academic consensus on core institutional features has emerged …

Zhang, Taisu, Land Law in Chinese History (March 2, 2020). Routledge Companion to Chinese Legal History, forthcoming.

Justin Scharff, ‘The Copyrightability of Fictional Characters: Why Harry Potter, Arya Stark, and Matrim Cauthon Are Copyrightable’

… The author will argue that the distinctive delineation test put forth by Judge Learned Hand eighty-nine years ago is the most effective way to determine whether a literary character is deserving of copyright protection. This Note will not only analyze both approaches but will also argue why the distinctive delineation test should be the prevailing view and adopted in all courts. Part II will discuss the Copyright Acts of 1909 and 1976 and the Copyright Office’s treatment of the issue. Part III will analyze the two landmark cases that established the two tests that are used today. Part IV will examine the application of the tests in modern cases. Part V will discuss whether Arya Stark, Harry Potter, and Matrim Cauthon meet the requirements of both tests. Part VI will discuss which test should be adopted. Finally, Part VII will conclude the Note.

Scharff, Justin, The Copyrightability of Fictional Characters: Why Harry Potter, Arya Stark, and Matrim Cauthon Are Copyrightable, Touro Law Review: volume 35 (2020): no 4, article 9.

‘The Rational Question’

“How rational are people? A common answer: ‘Not very—instead, we’ve learned from social psychology and behavioural economics that people are systematically irrational’. I disagree. I think we don’t yet know how (ir)rational people are. Why not? Because there’s a problem with the basis of the common irrationalist answer. The problem I have in mind isn’t to do with replication failures, publication bias, or statistical malpractice. The problem is not with the empirical observations, but with their normative foundations …” (more)

[Kevin Dorst, The Oxonian Review, 13 March]

Hanoch Dagan, ‘Spousal Contracts and Choice Theory’

Contract is one of the key tools liberal law employs in the service of its core mission of enhancing people’s autonomy, and choice theory conceptualizes this task as contract’s telos. It thus prescribes three principles – proactive facilitation, regard for the future self, and relational justice – for guiding the legal constitution of contract law in all spheres of human interaction. Spousal contracts are no exception. Thus, the law governing spousal agreements both allows people to adjust the default rules governing their marital estates and provides people off-the-shelf options for structuring their interpersonal interaction as a spouse. In turn, the law of marital contract ensures that free exit from marriage is, as it should be, immutable. Finally, relational justice guides, albeit still imperfectly, both law’s normative defaults for marital contracts and the rules that govern premarital, marital, and cohabitation agreements.

Dagan, Hanoch, Spousal Contracts and Choice Theory (March 1, 2020). European Contract Law and Theory, forthcoming.

‘Medieval Theories of Obligationes

Obligationes (literally, ‘obligations’) or disputations de obligationibus were a medieval disputation format that became very widespread in the thirteenth and fourteenth centuries. Although their name might suggest they had something especially to do with ethics or moral duty, they did not. The purpose of these disputations was strictly logical. Several kinds of disputations de obligationibus were distinguished in the medieval literature. The most widely studied kind to date was called ‘positio’ (= positing). It is difficult or even impossible to map the genre to the genres of modern logic, but issues involved include at least counterfactual and per impossibile reasoning, and dynamic commitment to remain logically consistent. Disputations de obligationibus appear to lay at the background of the modern practice of the academic ‘thesis defense’ …”

Medieval Theories of Obligationes. Stanford Encyclopedia of Philosophy. First published Mon Jul 14, 2003; substantive revision Thu Mar 26, 2020.

Robert Herian, ‘The Conscience of Thomas More: An Introduction to Equity in Modernity’

… For both More’s predecessor Cardinal Wolsey and More himself ‘conscience remained front‐and‐centre as far as Chancery was concerned’. The cusp of the Reformation saw the medieval order ‘yielding to an intellectual and economic revolution’, and Christendom ‘rent by the divisions between Protestant and Catholic’. Thomas More’s conscience smashed, with devastating effect, against the first brutal vestiges of modernity and it cost him his life. More also guided Equity towards modernity by, for example, insisting on injunctions ‘to prevent unconscientious use of legal rights’, an early example of the doctrine of unconscionability that remains indicative of Equity’s relative flexibility and discretion within the Common Law …

Robert Herian, The Conscience of Thomas More: An Introduction to Equity in Modernity, Heythrop Journal. First published: 20 February 2020.

Courtney Joslin, ‘Family Choices’

Non-marital partners in the US generally have no legal obligations to each other unless they agree to take them on. There is lively scholarly debate about the continued vitality of this approach. A number of legal scholars criticize the current approach to inter se economic rights of former non-marital partners. A different group of legal scholars defend the dominant approach. Interestingly, scholars on both sides invoke autonomy and choice. This Article offers a new lens through which to evaluate this dialectic.

The first contribution of this Article is to demonstrate that scholars come to opposing conclusions despite a similar underlying concern because they focus on different choice or autonomy-exercising moments. Some scholars – myself included – focus on the decision to form a non-marital family. In contrast, other scholars prioritize ‘choices’ regarding the parties’ specific rights and obligations to each other. The second contribution of this Article is to interrogate these different decisions as the trigger for the default rule. In so doing, this Article seeks to more clearly orient the debate and, hopefully, to push it forward in helpful ways.

Joslin, Courtney G, Family Choices (March 25, 2020). 51 Arizona State Law Journal 1285, 2020.

Call for Papers: Small Claims Dispute Resolution for Consumers – A European Approach: Brussels, 10 September 2020

The conference organising team welcomes research papers that contribute to the broad body of knowledge in legal analysis of the European models of small claims dispute resolution and online dispute resolution (ODR) for consumers. In particular, the early-career researchers are encouraged to present their academic contributions to the conference and receive fruitful feedback from the academic panels upon their presentations at the event … (more)