A Comparative Approach to Inheritance Rights of Cohabitants: Filippo Viglione, IALS, 16 May 2019

In this seminar Filippo Viglione will discuss the various solutions being adopted with regard to the legal consequences of non-marital cohabitations, specifically in relation to inheritance rights and he will compare the different models that are gaining ground in the western legal tradition, allowing protection of the surviving cohabitant’s succession beyond the possibility of inheriting through a will … (more, registration)

Just Published: Contributory Negligence in the Twenty-First Century, by James Goudkamp and Donal Nolan

Despite the centrality of the contributory negligence doctrine in practice, almost nothing is known about how it functions in reality. The authors, seeking to fill this deficit in understanding, have engaged in a wide-ranging empirical study of how the doctrine is handled by the courts. They report their methodology and findings in this volume, framing their discussion in the law of contributory negligence.

The study is based on 572 first instance decisions on contributory negligence from across the UK decided between 2000 and 2016, and 130 appellate decisions handed down in the same time period. The analysis considers the operation of the contributory negligence doctrine at first instance and on appeal, and also in three particular contextual settings, namely road accidents, accidents at work and professional negligence claims. The authors conclude with a discussion of the central issues identified in the analysis, and look at how the study can be used to inform future developments in this area of law. Substantial appendices set out all of the data on which the book is based, enabling academics to utilise the dataset in their own research and allowing practitioners to easily compare their cases with previously decided cases.

Contributory Negligence in the Twenty-First Century, by James Goudkamp and Donal Nolan. 352pp. OUP Oxford (27 March 2019). ISBN 0198814240. £95.00.

Jesse Wall, ‘No-Fault Compensation and Unlocking Tort Law’s: “Reciprocal Normative Embrace”’

The purpose of this article is to explain how the principle of corrective justice has been displaced by the provision of no-fault compensation for personal injuries. In explaining the transition from tort liability for personal injuries to no-fault compensation, the aim is to identify the norms that are adhered to, and the norms that are abandoned, under either scheme. The explanation unfolds through three sections. Section 2 examines the principled basis for a no-fault compensation scheme that is formulated in the Woodhouse Report. Section 3 then turns to consider how, in the absence of a no-fault compensation scheme, the principle of corrective justice imposes an agent-relative duty of reparation on those responsible for causing a wrongful loss. Section 4 then considers how the duty of reparation can be discharged by a third party when we reconfigure our conception of ‘wrongful loss’ and considers the implications of the reconfiguration for the fault principle. Viewing the transition from tort law actions to no-fault compensation in this way enables us to appreciate how a ‘normatively significant connection between actions and their outcomes’ is severed through the reconfiguration of ‘wrongful loss’.

Jesse Wall, No-Fault Compensation and Unlocking Tort Law’s: ‘Reciprocal Normative Embrace’ (2016) New Zealand Universities Law Review, 27(1), 125-144.

Khan and Pozen, ‘A Skeptical View of Information Fiduciaries’

The concept of ‘information fiduciaries’ has surged to the forefront of debates on online platform regulation. Developed by Professor Jack Balkin, the concept is meant to rebalance the relationship between ordinary individuals and the digital companies that accumulate, analyze, and sell their personal data for profit. Just as the law imposes special duties of care, confidentiality, and loyalty on doctors, lawyers, and accountants vis-à-vis their patients and clients, Balkin argues, so too should it impose special duties on corporations such as Facebook, Google, and Twitter vis-à-vis their end users. Over the past several years, this argument has garnered remarkably broad support and essentially zero critical pushback.

This Essay seeks to disrupt the emerging consensus by identifying a number of lurking tensions and ambiguities in the theory of information fiduciaries, as well as a number of reasons to doubt the theory’s capacity to resolve them satisfactorily. Although we agree with Balkin that the harms stemming from dominant online platforms call for legal intervention, we question whether the concept of information fiduciaries is an adequate or apt response to the problems of information insecurity that he stresses, much less to more fundamental problems associated with outsized market share and business models built on pervasive surveillance. We also call attention to the potential costs of adopting an information-fiduciary framework – a framework that, we fear, invites an enervating complacency toward online platforms’ structural power and a premature abandonment of more robust visions of public regulation.

Khan, Lina and Pozen, David E, A Skeptical View of Information Fiduciaries (February 25, 2019). Harvard Law Review, volume 133, 2019, forthcoming.

Klaus Ulrich Schmolke, ‘Economics of Remedies – The Perspective of Corporate Law’

From a law-and-economics perspective the primary goal of (legal) remedies is to enhance social welfare by minimising social costs. Remedies help to achieve cost internalisation since they provide means by which third parties who are negatively affected by the respective action are entitled to veto the action (property rule) or to claim compensation for their losses (liability rule). Examples from German stock corporation law illustrate the respective strengths and weakenesses of both types of rules. The right of each single shareholder to claim the rescission of an (allegedly) unlawful shareholders’ resolution by which the shareholder can effectively stall the execution of the underlying transaction (property rule) can lead to very expensive holdout problems. Liability rules like the shareholder’s appraisal remedy, on the other hand, may suffer from valuation problems. Additional incentive issues occur where the law employs the shareholder to protect the interests of the company, ie the interests of the shareholders in their entirety.

Schmolke, Klaus Ulrich, Economics of Remedies – The Perspective of Corporate Law (February 1, 2019). Law of Remedies: A European Perspective edited by Franz Hofmann and Franziska Kurz (Intersentia), forthcoming.

Case Analysis: Fearn v Trustees of the Tate Gallery [2018] EWHC 246 (Ch)

“The claim related to a public viewing platform on the 10th Floor of the Tate Modern art gallery in Central London. The gallery overlooked a modern residential development approx 35m away with striking floor to ceiling windows. As a result, visitors using the platform could see into the living areas of the flats …” (more)

[Tanfield Chambers, 22 February]

‘Should Owner Motivation Limit the Exercise of Property Rights?’

Lee Anne Fennell, Owning Bad: Leverage and Spite in Property Law, in Civil Wrongs and Justice in Private Law (Paul B Miller and John Oberdiek, eds) (forthcoming Oxford University Press), available at SSRN. People sometimes exercise their property rights out of animus or an attempt to gain leverage over someone else. An owner may build a fence from which he gains no benefit because he maliciously wishes to block his neighbor’s view. Or a prospective seller may overstate the minimum price she would accept for a good in an effort to gain an advantage in the negotiations to follow. In the first case, the owner probably commits a civil wrong, while in the second case, the owner probably does not … (more)

[Gregory M Stein, JOTWELL, 20 March]

Remigius Nwabueze, ‘Illegality and trusts: trusts-creating primary transactions and unlawful ulterior purposes’

Patel v Mirza provides an interesting opportunity to re-examine the role of illegality in the enforcement of trusts. Though Patel was a case on unjust enrichment and contract, its ratio, to the effect that a restitutionary claim would not be necessarily undermined by an underlying illegality, would definitely resonate with a claim in trust that has an unlawful ulterior purpose. I argue that the role illegality plays in the law of trusts is often exaggerated. I hypothesise that a properly constituted trust, which arises from the primary feature of a transaction between the parties, should be enforced despite some credible evidence that the trust has an illegal ulterior purpose. Similarly, a trust that arises by operation of law from a given primary feature of a transaction should be enforced notwithstanding an underlying illegality …

€ (Westlaw)

Remigius N Nwabueze, ‘Illegality and trusts: trusts-creating primary transactions and unlawful ulterior purposes’ [2019] Conveyancer and Property Lawyer 29.

Alexander Chrysanthou, ‘Reliance and representations/promises in frozen embryo disputes: UK and Israeli approaches to estoppel’

Frozen embryo disputes are hard cases since providing the decision over whether or not to become a parent/dispose of the embryo(s) to one gamete provider in the way he/she wishes denies the other an equivalent decision. In response, estoppel, it is argued, can provide a doctrinally robust response due to its flexibility in deeming whether a person relied upon representation(s) or promise(s) made. The exploration of this theme indicates that the gamete provider seeking implantation will often have a stronger case in equity. The different approaches in UK and Israeli law in this context are duly noted.

Alexander Chrysanthou, Reliance and representations/promises in frozen embryo disputes: UK and Israeli approaches to estoppel, Medical Law International. First Published March 19, 2019. https://doi.org/10.1177/0968533219837672.

Maureen Brady, ‘Property and Projection’

In cities across the country, artists, protestors, and businesses are using light projections to turn any building’s façade into a billboard, often without the owner’s consent. Examples are legion: ‘Believe Women’ on a New York City Best Buy; a scantily clad male model on the side of an apartment building; a nativity scene on the Los Angeles chapter of the American Civil Liberties Union. Two courts have considered claims by owners seeking to stop these projections under theories of trespass and nuisance. In each case, the courts held that because light is intangible and the projections result in no economic harm to the property, the common law affords no relief.

This Article argues that property law can and should address projection claims by private owners. It traces the history of property tort claims involving light, explaining how the law developed to emphasize economic and physical harm and identifying the forgotten strands of doctrine that nonetheless support liability for targeted projections. Projections are forms of appropriation: they disrupt the owner’s use and control, but they also cause dignity and privacy harms by exploiting the owner’s realty toward unwanted ends. Protections for these noneconomic interests have long been parasitic on trespass and nuisance, but the light projections expose a gap between the two forms of action. This Article offers a pathway to mend the gap despite hurdles in both nuisance and First Amendment law. More generally, the projection cases teach broader lessons about the development of the property torts, the relationship between privacy and property, and the nature of property itself.

Brady, Maureen E, Property and Projection (March 19, 2019). Harvard Law Review, forthcoming; Virginia Public Law and Legal Theory Research Paper No 2019-11.