Benjamin Hayward, ‘Book Review – The Foundation of Choice of Law: Choice and Equality

This piece is a book review of The Foundation of Choice of Law: Choice and Equality, by Sagi Peari, published by Oxford University Press in 2018. Peari’s text addresses an important private international law issue – the identification of the governing substantive law – and in doing so, proposes a novel theoretical underpinning for that issue comprised of a ‘choice’ pillar and an ‘equality’ pillar. Drawing heavily upon (but also building upon) the theoretical work of Savigny and Kant, Peari demonstrates how a proper theoretical understanding of choice of law questions can help inform how we apply (and improve) private international law systems. This book review explores Peari’s choice equality foundation, identifies two particularly interesting aspects of Peari’s argument, comments on some effective matters of style in Peari’s text, and addresses the theory-practice link identified by Peari as relevant in this area of the law.

Hayward, Benjamin, Book Review – The Foundation of Choice of Law: Choice and Equality (2019). Deakin Law Review, volume 24, no 1, 2019.

‘Mass Tort Deals – Chapter Four’

“In many instances, it seems as though lawyers manage to rope judges into using procedural mechanisms and their trusted status as authority figures to push plaintiffs into settlements. The big danger seems to be that because we do not have clean, well-established procedural rules specifically for multi-district litigation proceedings, judges simply do whatever they want, often using coercive powers without any real safeguards …” (more)

[Benjamin P Edwards, Business Law Prof Blog, 19 September]

Hamish Stewart, ‘The place of instrumental reasoning in law’

Most people think of law as an instrument that can help us achieve human purposes that can themselves be adequately specified without reference to law or legal ideas. But a number of scholars, associated in various ways with the natural law tradition in jurisprudence, have argued that we should understand law non-instrumentally, in the sense that its role is to constitute rightful relations between people, where the rightfulness of these relations cannot be specified apart from the legal ideas, institutions, principles, and rules that constitute them. On this view, the law cannot be instrumental because its purpose cannot be understood independently of the way it achieves that purpose. In this paper, I argue that these two views are compatible to the following extent. Even if the point of the legal order as a whole is to constitute a state of affairs that is rightful in a sense that cannot be characterised apart from legal ideas, instrumental reasoning about the causal effectiveness of particular laws in achieving particular purposes is not precluded, indeed is essential, provided those purposes are themselves understood as contributions to the constitution of just relations between people rather than as contributions to the achievement of some independently defined good.

Hamish Stewart, The place of instrumental reasoning in law, Jurisprudence: An International Journal of Legal and Political Thought. Published online: 19 September 2019.

Erdos and Garstka, ‘The “Right to be Forgotten” Online within G20 Statutory Data Protection Frameworks’

Although it is the EU’s General Data Protection Regulation and the Google Spain judgment which has brought the concept of the ʻright to be forgottenʼ online to the fore, this paper argues that its basic underpinnings are present in the great majority of G20 statutory frameworks. Whilst China, India, Saudi Arabia and the United States remain exceptional cases, fifteen out of nineteen (almost 80%) of G20 countries now have fully-fledged statutory data protection laws. By default, almost all of these laws empower individuals to challenge the continued dissemination of personal data not only when such data may be inaccurate but also on wider legitimacy grounds. Moreover, eleven of these countries have adopted statutory ʻintermediaryʼ shields which could help justify why certain online platforms may be required to respond to well-founded ex post challenges even if they lack most ex ante duties here. Nevertheless, the precise scope of many data protection laws online remains opaque and the relationship between such laws and freedom of expression is often unsatisfactory. Despite this, it is argued that G20 countries and G20 Data Protection Authorities should strive to achieve proportionate and effective reconciliation between online freedom of expression and ex post data protection claims, both through careful application of existing law and ultimately through and under new legislative initiatives.

Erdos, David and Garstka, Krzysztof, The ‘Right to be Forgottenʼ Online within G20 Statutory Data Protection Frameworks (September 10, 2019).

Rosalie Jukier, ‘Good Faith in Contract: A Judicial Dialogue Between Common Law Canada and Québec’

In recent years, appellate courts, both in the civilian jurisdiction of Québec and the common law jurisdictions in the rest of Canada, have grappled with the extent of the duty of good faith in contract performance. This paper examines this issue from the perspective of a judicial conversation on the subject occurring between judges belonging to both of Canada’s legal traditions. Interestingly, both common law and Québec judges are referring to each other’s decisions, sometimes with a view to bolstering a wider conception of good faith, as in the Supreme Court decision of Bhasin v Hrynew, but other times to justify a retreat from a more robust view of the doctrine, as in the Québec Court of Appeal decision in Churchill Falls v Hydro-Québec. This paper attempts to decipher the impact of this judicial dialogue and discusses the evolution of good faith in contract performance in Canada’s civilian and common law jurisdictions.

Jukier, Rosalie, Good Faith in Contract: A Judicial Dialogue Between Common Law Canada and Québec (September 9, 2019). (2019) 1 Journal of Commonwealth Law.

Gregory Alexander, ‘Property, Dignity, and Human Flourishing’

Human flourishing and human dignity are not empty phrases. They have real content, and they matter in real lives. The facts are that we want to live flourishing lives and we want to live lives of dignity. We cannot live such lives, however, unless certain conditions are fulfilled. Among these conditions, flourishing is personal autonomy, understood in the sense of self-authorship. Autonomy in that sense itself requires certain conditions. Property is among the conditions intimately connected with self-authorship. A person who lacks basic forms of property such as food and adequate shelter is denied self-authorship, without which she cannot experience whatever form of life she considers fulfilling. The harsh reality is that many, all too many, people do not live such a life. Those of us who are fortunate enough to know what it means to live a fulfilling life should be profoundly disturbed by that reality and unwilling to accept things as they are.

Gregory S Alexander, Property, Dignity, and Human Flourishing, 104 Cornell Law Review 991 (2019).

Warren Swain, ‘A Historical Examination of Vicarious Liability: A “Veritable Upas Tree”?’

Vicarious liability was, and it remains, curiously unsatisfactory. After a period of stability from the Middle Ages into the early modern period in the late seventeenth into the early eighteenth century, the existing law of vicarious liability began to be challenged. The mid-nineteenth century saw another reappraisal coinciding with the rise of notions of fault. The period that follows, from the late nineteenth century until after the Second World War period has not attracted much comment. One key debate in this period and earlier which provides a useful lens to examine the doctrine was whether vicarious liability should be properly characterised as a master’s or servant’s tort theory. The history of the doctrine during this period goes some way to explaining why the modern law remains incoherent.

Warren Swain, A Historical Examination of Vicarious Liability: A “Veritable Upas Tree”?, Cambridge Law Journal. DOI: Published online by Cambridge University Press: 18 September 2019.

Felipe Jiménez, ‘Two Questions for Private Law Theory’

How should we build theories of private law? This article claims that, in answering this question, we should keep in mind the distinction between wholesale questions about the best interpretation or justification of legal institutions, and retail questions about their internal operation – in other words, the distinction between questions about legal institutions and questions within them. This distinction has been obscured in recent private law theory. In this article, I argue that, if we want to make progress in understanding private law, we should reclaim the distinction.

Jiménez, Felipe, Two Questions for Private Law Theory (September 12, 2019).

‘Projecting and Puppeteering’

Maureen E Brady, Property and Projection, 133 Harvard Law Review (forthcoming 2020), available at SSRN. Suppose an unfriendly neighbor, professional rival, disgruntled employee, or random malcontent decides to send a message – from you. Said enemy projects words or images onto your real estate – the facade of your home or office building, say – turning your private property into an ‘unwitting billboard’ showcasing an unwanted message. The affront is palpable, but a viable cause of action has proved as hard to nail down as the light beams themselves. Claims based on these fact patterns have so far foundered: courts find these projected intrusions too incorporeal to count as trespass, yet too fleeting and harmless to count as nuisance … (more)

[Lee Anne Fennell, JOTWELL, 19 September]

Sugarman and Boucher, ‘Re-Imagining the Dignitary Torts’

Tort law is cluttered with different causes of action that permit financial recovery for emotional harms arising from what we call wrongful affronts to human dignity. These include the common law torts of offensive battery, assault, false imprisonment, privacy invasion, defamation, some nuisance claims, and the more broadly labeled actions for intentional and negligent infliction of emotional distress. We don’t need all this clutter. Plus, simplifying our approach to dignitary harm would eliminate unjustified inconsistencies found in this group of torts. This article paves the way for a more coherent approach to the protection of personal dignity.

Sugarman, Stephen D and Boucher, Caitlin, Re-Imagining the Dignitary Torts (September 8, 2019).