Pietro Ortolani, ‘The impact of blockchain technologies and smart contracts on dispute resolution: arbitration and court litigation at the crossroads’

This article investigates the twofold impact that blockchain technologies and smart contracts have on dispute resolution. On the one hand, these technologies enable private parties to devise arbitral systems that are self-enforcing and, therefore, largely bypass the recognition and enforcement procedures through which State courts traditionally exert a certain control over arbitration. This phenomenon may in the future allow arbitration to become entirely self-sufficient, thus leading to the marginalization of State courts. On the other hand, however, such a marginalization has not taken place yet; to the contrary, the recent blockchain-related phenomenon of initial coin offerings has given rise to some prominent court cases. These cases raise particularly interesting jurisdictional questions, especially in light of the difficulty of reconciling the decentralized nature of the blockchain with the territorial approach whereby jurisdiction is typically allocated among national courts.

Pietro Ortolani, The impact of blockchain technologies and smart contracts on dispute resolution: arbitration and court litigation at the crossroads, Uniform Law Review, https://doi.org/10.1093/ulr/unz017. Published: 16 May 2019.

Jef and Faure, ‘The Liability of Public Authorities: An Economic Analysis’

Traditional economic analysis of accident law has largely focused on individual utility maximising actors as potential injurers and victims. On that basis a huge literature has been developed since the early publications of Calabresi in the 1960’s explaining under which conditions particular liability rules may be effective in promoting social welfare. Moreover, the theoretical assumptions made in the literature have increasingly been met with empirical support. However, less attention has been paid to the situation where the tortfeasor is not an individual actor or a commercial enterprise, but rather a public authority. Only relatively recently have some articles started to explore public authority liability. The goal of our contribution is to provide an overview of this literature.

Jef, De Mot and Faure, Michael G, The Liability of Public Authorities: An Economic Analysis (2016). In The Liability of Public Authorities in Comparative Perspective, ed K Oliphant (in the series Principles of European Tort Law), 2017.

‘“Property” as a Dynamic Technology, and Its Consequences’

Lee Anne Fennell, Property Beyond Exclusion, 61 William and Mary Law Review (forthcoming 2019), available at SSRN. While the layperson tends to think of ‘property’ in terms of things, modern legal discourse tends to conceive of property as a ‘bundle of sticks’, ie, a collection of rights with respect to land, or to tangible and intangible objects. In her new article Property Beyond Exclusion, University of Chicago law professor Lee Anne Fennell has a different take. Fennell focuses not so much on any specific contents of the bundle; rather, her focus is on the changes in their nature. Professor Fennell’s thesis in Property Beyond Exclusion is that rights generally associated with landed property increasingly should not be structured around physical boundaries. While physical demarcation of parcels of land remains our ‘workhorse strategy’, it is ‘becoming less efficacious and more costly’ (P 3) … (more)

[Steve Eagle, JOTWELL, 20 May]

‘The summer beach read you’ve been looking for: Don Herzog on Defaming the Dead

“Looking for the perfect gift for that tort lover in your family? The perfect read for the beach this summer? Look no farther. Pick up Don Herzog’s Defaming the Dead (Yale University Press 2017). Herzog, a law professor at the University of Michigan, published this odd delight. He makes a cogent argument against the common law rule prohibiting defamation actions predicated on injury to the reputation of the dead …” (more)

[Richard J Peltz-Steele, The Savory Tort, 20 May]

‘Legal Theory Lexicon: Utilitarianism’

“This installment of the Legal Theory Lexicon is a very brief introduction to utilitarian moral and political philosophy tailored to law students (especially first-year law students) with an interest in legal theory. Law students learn early on that classroom discussion of cases and statutes may begin with questions about what the rule is but is likely to turn to questions about what the rule should be. And in most law school classrooms, analysis of the ‘should’ question is likely to go down one of two paths. The first path leads to fairness (which outcome in this case is fair to the parties; which rule will produce fair results in the future). The second path leads to policy (which rule will produce the best consequences in the future) …” (more)

[Lawrence Solum, Legal Theory Blog, 19 May]

Just Published: Statutory Interpretation in Private Law (Prue Vines and M Scott Donald eds)

In the past 50 years private law has undergone a revolution: statutes are now prevalent in every area. This book considers how judges in private law cases should respond to this change. How are statutes to be interpreted in this area with its deep historical roots, and is it reasonable to think that statutory interpretation might have different aspects and emphases in private law compared with public law?

Divided into three parts: Introduction; Current Trends and Debates; and, Applications of Statutory Interpretation in Private Law, the book seeks to recognise the institutional reality of the statutory presence in private law. A distinguished group of authors including the Hon Tom Bathurst AC, Justice Mark Leeming and Justice Ashley Black, consider this question from a range of viewpoints. For example, the area of private law is full of transactional analysis – how different is the construction of contracts from statutory interpretation?

The book canvasses some general questions about how statutory interpretation operates in private law, such as whether there should be a different concept of the principle of legality in private law, or whether parliamentary intention might include an understanding of private law. Particular applications such as the role of statutory interpretation in contributory negligence, defamation, directors’ duties, consumer law and equity are also considered.

Prue Vines and M Scott Donald (eds), Statutory Interpretation in Private Law. 17 May 2019. The Federation Press. 288pp. ISBN 9781760022051. Australian RRP $160.00, International Price $145.00.

Alon Cohen and Avraham Tabbach, ‘Informational Negligence Law’

This article offers an analysis of negligence law in an environment with asymmetric information and costly signaling. We consider three possible variations of the negligence doctrine, based on its two elements – the standard of care and damages. We find that accounting for signaling costs affects the social desirability of the negligence rule. In a nontrivial number of cases, the social costs are lowest under the variation of the negligence regime in which the standard of care is the same for all types of victims but damages vary according to the victim’s type. This analysis provides an efficiency-based justification for the use of negligence doctrine in bodily injuries and wrongful death cases, a practice that has been considered one of the greatest ‘misalignment puzzles’ in negligence law.

Alon Cohen and Avraham Tabbach, Informational Negligence Law, American Law and Economics Review, Volume 21, Issue 1, Spring 2019, Pages 110-149, https://doi.org/10.1093/aler/ahz002.

Faisal Chaudhry, ‘Property as Rent’

As fear of financial market turbulence reaches its most severe level since the lead up to the Great Recession in 2007, this article revisits the topic of real estate securitization while broaching a broader concern with the inadequacy of how property theory has reckoned with major changes in the post-war economy since the 1970s. To do so the article highlights a new form of securitization – of rental payments from single-family homes – that has been emerging in the United States since 2013. It discusses the new class of securities that such single family rental (SFR) payments support as one example of the economy’s ever shifting overreliance on debt-based forms of financial asset property more generally. The article situates real estate securitization in specific and financial asset property in general in relation to our reinvigorated debate in law about property as an in rem right to exclude versus a versus a bundle of social relations making democratic community possible. Arguing that neither side in the debate has been well equipped to account for financial asset property, the article makes a normative case against the renewed resort to securitization in the real estate market …

Chaudhry, Faisal, Property as Rent (April 18, 2019). St John’s Law Review, forthcoming.

Jay Feinman, ‘Contract and Claim in Insurance Law’

This article offers a new perspective on insurance law by examining and combining two basic features of insurance and insurance law: the nature of the insurance contract and the fact that most insurance law issues concern a disputed claim. Insurance law scholars are fond of reconceptualizing their subject. Insurance policies and insurance law have been likened to a means of public utility regulation, a product warranty, a social institution, or, perhaps mostly simply, a thing. This article represents another conceptualization of the subject, and one that may be less foreign to the subject and closer to the reality of the formation and performance of insurance relationships …

Feinman, Jay M, Contract and Claim in Insurance Law (2018). Connecticut Insurance Law Journal, volume 25, no 1, 2018.

‘Rethinking Choice of Law and International Arbitration in Cross-border Commercial Contracts’

“During the 26th Willem C Vis Moot, Dr Gustavo Moser, counsel at the London Court of International Arbitration and PhD in international commercial law from the University of Basel, coordinated the organization of a seminar regarding choice of law in international contracts and international arbitration. The seminar’s topics revolved around Dr Moser’s recent book Rethinking Choice of Law in Cross-Border Sales (Eleven, 2018) which has been globally recognized as one of the most useful books for international commercial lawyers …” (more)

[Gustavo Becker, Conflict of Laws .net, 17 May]