‘A Call for Projects and Proposals from the American Society for Legal History’

“The Projects and Proposals Committee of the American Society for Legal History exists to encourage new initiatives in the study and presentation and production of legal historical scholarship and in the communication of legal history to all its possible publics and audiences. It is the mission of the committee to find ways to bring talented new voices into our field, to encourage novel forms of scholarly interchange, to support pedagogical experiments in legal history, and to seed new forms and venues for public history …” (more)

[Legal History Blog, 22 June]

Dan Priel, ‘The Return of Legal Realism’

The main goal of this essay is to explain in what sense ‘we are all realists now’. It examines various answers to this question suggested by existing literature and proposes another. The key is identifying a fundamental divide among the legal realists on what makes their view ‘realistic’. One group of legal realists, of whom Karl Llewellyn and Jerome Frank are the most notable exponents, has argued that realism consists in greater awareness by legal academics to the realities of legal practice. The other group, of whom Felix Cohen and Walter Wheeler Cook were notable exponents, has argued that being realistic about law meant adopting the methods of the natural sciences. Following on this, the two groups of realists have given very different answers to a series of fundamental questions about such as the common law, the proper approach to law reform, legal education. Ultimately, I argue, these two views rest on competing views on the authority of law. It is this contrast, I argue, that allows us to place the realists in historical context, as well as explain the continuing relevance of legal realism(s) to contemporary debates.

Priel, Dan, The Return of Legal Realism (June 19, 2017). Forthcoming in the Oxford Handbook of Historical Legal Research (Markus D Dubber and Christopher Tomlins eds, 2018).

Shelly Kreiczer-Levy, ‘Property without Personhood’

The property as personhood theory provides a dominant justification for legal theory and has shaped numerous legal doctrines. Although the theory has been criticized by many scholars, one important concern has escaped scholars thus far. Property as personhood limits identity and confines growth. The concept allows little room for experimenting with personality and testing one’s lifestyle. Access, a rising form of property use in the sharing economy, provides an important alternative. It allows for property use without personhood, emphasizing choice, flexibility and mobility. This Article presents this alternative and explains its significance to property legal theory contra the property as personhood theory. It also details the benefits and costs associated with property without personhood, and sketches out possible legal implications.

Kreiczer-Levy, Shelly, Property without Personhood (April 16, 2017). Seton Hall Law Review, Vol 47, 2017.

Tim Dornis, ‘The Doctrines of Contract and Negotiorum Gestio in European Private Law: Quest for Structure in a No Man’s Land of Legal Reasoning’

The field of negotiorum gestio is perplexing. In civil law, its doctrinal, policy, and economic foundations are far from clear. In common law, the concept even seems to be inexistent. Nevertheless, in common-law as under civil-law doctrine, certain situations of intervention in another’s affairs are acknowledged as establishing claims of an intervening party against the other side or vice versa. Whether these cases are formally treated under the rubric of negotiorum gestio or not, the practical relevance of the field cannot be denied, lest the search for a consistent system be neglected. Of the many fundamentals that still await clarification, one of the most pertinent is the question of how to draw the line between contract law and negotiorum gestio (or its equivalents in common law). A comparative look at different jurisdictions and the fields’ structural foundations reveals that there not only exists a wide-reaching similarity in practical outcomes, but that the underlying policy is almost universally founded on a uniform economic basis — even though arguments of this kind are seldom made explicitly.

Dornis, Tim W, The Doctrines of Contract and Negotiorum Gestio in European Private Law: Quest for Structure in a No Man’s Land of Legal Reasoning (2015). Restitution Law Review, Vol. 23, 2015.

Steve Hedley, ‘The Rise and Fall of Private Law Theory’

Over the last four decades of common law thought, there have been increasingly sophisticated attempts to develop comprehensive theories of private law. Chief amongst these are (1) theories of corrective justice, (2) economic theories, and (3) formalist accounts. The common feature of these apparently diverse ‘grand theories’ is a lack of trust in collective action: legislatures are not trusted to serve the public good, individuals are trusted only to pursue their private interests, and judges are trusted only when they focus on technical legal issues, not when they ask whether their decisions may have a broader significance. These accounts implicitly contrast the rights of individuals with the good of the community. Yet the opposition is false: safeguarding the rights of individuals is safeguarding the good of the community, and vice-versa. Their approach makes large areas of private law either invisible or incomprehensible, and leave them with little to say on how the law can be reformed or improved. Trust in collective institutions, as well as in individuals, is ubiquitous in all modern societies – rightly so, necessarily so – and as this is more widely appreciated, these grand theories are progressively losing their distinctive character as their better points are absorbed back into mainstream legal thinking.

Hedley, Steve, The Rise and Fall of Private Law Theory (June 14, 2017). Law Quarterly Review, 2018 forthcoming.

Cornell and Light, ‘Wrongful Benefit and Arctic Drilling’

The law contains a diverse range of doctrines — ‘slayer rules’ that prevent murderers from inheriting, restrictions on trade in ‘conflict diamonds’, the Fourth Amendment’s exclusion of evidence obtained through unconstitutional search, and many more — that seem to instantiate a general principle that it can be wrong to profit from past harms or misconduct. This Article explores the contours of this general normative principle, which we call the wrongful benefit principle. As we illustrate, the wrongful benefit principle places constraints both on whether anyone should be permitted to exploit ethically tainted goods, and who may be permitted to profit or otherwise benefit from past wrongful or harmful conduct. We test the boundaries of the principle by examining its application to the pressing and complex case of Arctic drilling. The burning of fossil fuels and the resulting melting of Arctic ice have, ironically, opened access to oil fields in the Arctic that were previously inaccessible. In our view, the historical cause of this opportunity is normatively significant to questions about what oil extraction should be permitted in the Arctic in the future. We conclude by suggesting the kind of legal responses — both domestic and global — that can incorporate the wrongful benefit principle.

Nicolas Cornell and Sarah E Light, Wrongful Benefit and Arctic Drilling, University of California Davis Law Review volume 50:1845 (June 2017).

Geoffrey Vos, ‘The UK Jurisdictions After 2019’

I am delivering this lecture at a time of great change. The General Election has produced a hung Parliament and there remains uncertainty about Brexit. Contrary to what many have said and even more think, Brexit is not just a political question, it raises intensely difficult legal issues that are worthy of careful research and debate. They are issues that the senior judiciary of England and Wales, myself included, feel are too important to ignore, and too important for the judges to stand wholly on the side-lines whilst others debate them … (more)

Sir Geoffrey Vos, Chancellor of the High Court, Lecture to the Faculty of Advocates, The UK Jurisdictions After 2019 (20 June 2017).

Blocher and Gulati, ‘Markets and Sovereignty’

The past few decades have witnessed the growth of an exciting debate in the legal academy about the tensions between economic pressures to commodify and philosophical commitments to the market inalienability of certain items. Sex, organs, babies, and college athletics are among the many topics that have received attention. The debates often have proceeded, however, as if they involve markets on one side and the state on the other, with the relevant question being the ways in which the latter can or should try to facilitate, restrict, or rely on the former. In this article, we approach the relationship between markets and sovereign control from a different perspective, and contemplate more radical versions of their relationship. What would it mean for governing authority itself to be market alienable? And what would it mean if the people – rather than the state – were the ones who set the prices and controlled the transfers? Could a ‘market for sovereign control’ contribute to welfare-enhancing changes in governance?

Blocher, Joseph and Gulati, Mitu, Markets and Sovereignty, Osgoode Hall Law Journal 54.2 (2017) : 465-490.

Denise Meyerson, ‘Medical Negligence Determinations, the “Right to Try”, and Expanded Access to Innovative Treatments’

This article considers the issue of expanded access to innovative treatments in the context of recent legislative initiatives in the United Kingdom and the United States. In the United Kingdom, the supporters of legislative change argued that the common law principles governing medical negligence are a barrier to innovation. In an attempt to remove this perceived impediment, two bills proposed that innovating doctors sued for negligence should be able to rely in their defence on the fact that their decision to innovate was ‘responsible’. A decision to innovate would be regarded as responsible if it followed a specified process. Although these changes to the law of medical negligence were not passed, this article argues that the idea of a process-based approach was sound. In the United States, a number of states have passed ‘Right to Try’ laws that permit doctors to prescribe and companies to provide investigational products without the need for FDA approval. These laws do not purport to and nor are they able to alter the obligations of individuals and companies under federal law. They are consequently unlikely to achieve their stated aim of expanding access to investigational products. This article argues that they nevertheless have a cogent rationale in so far as they highlight the need for rights-based reform to federal regulations governing access.

Denise Meyerson, Medical Negligence Determinations, the ‘Right to Try’, and Expanded Access to Innovative Treatments, Journal of Bioethical Inquiry (2017), doi:10.1007/s11673-017-9791-z. First Online: 20 June 2017.

Bell J on ‘The Individual Judge’

“UNSW Law Journal has now released the video of Bell J’s keynote speech at the launch of its thematic issue on ‘The Individual Judge.’ Pleasingly, this was certainly no puff piece. Indeed, beyond praising the journal’s ‘honoured place’ amongst peer-reviewed law journals and describing the issue’s article as ‘very readable and stimulating’, she didn’t (unless I missed something) have a single good thing to say about any of the papers in the issue. Indeed, she strongly criticised several and threw in some critiques of academic writing on the Court’s 2013 Monis decision to boot …” (more)

[Jeremy Gans, Opinions on High, 21 June]