Tobias Barkley, ‘Trustees’ Bare Legal Title: Concept or Misconception?’

There is a widespread idea that trustees hold a ‘bare’ or ‘dry’ title, which is distinguishable from an absolute owner’s title. A number of cases in Australia have suggested this is a misconception and a trustee’s title should not be distinguished from that of an absolute owner. This is said to be required by the theory that beneficial interests are not carved out of the trustee’s title but grafted onto it. This paper will argue this is an error; ‘bare legal title’ is a legitimate and useful concept. First, the carving/grafting theory, when properly understood, is narrow in scope and does not conflict with the idea of bare legal title. Second, the distinctiveness of a trustee’s title is recognised in a wide enough variety of contexts that it can be accepted as a useful general concept for interpreting rules that refer to property.

Barkley, Tobias, Trustees’ Bare Legal Title: Concept or Misconception? (December 6, 2016). (2017) 26 Australian Property Law Journal 44.

Call for Papers: International Conference of the Faculty of Law at the University of Plovdiv, Bulgaria, 19-20 September 2017

Invitation to the International Scientific Conference of the Faculty of Law at the University of Plovdiv celebrating the 25th Anniversary of the Faculty of Law, 19-20 September 2017, Plenary Hall of Municipality Council. You may submit a paper for a collected work and/or confirm participation in the conference … (more)

John Fanning, ‘Mental Capacity as a Concept in Negligence: Against an Insanity Defence’

A defendant’s ‘insanity’ will not excuse his or her negligence. According to corrective justice theory, if A injures B, then A should compensate B – that A’s actions may be attributable to a mental illness is therefore immaterial. Some tort scholars argue the law should excuse insane defendants from liability because they lack the mental capacity to commit negligence. ‘Capacity’ therefore lies at the core of the case for insanity defence. This article argues that ‘capacity’ fails as a framework concept for the insanity defence. It is poorly defined, fails to map onto the structural features of negligence and poses significant evidential challenges. It also has a spurious relationship with insanity. This paper prefers the status quo and concludes that the case for excusing the insane from negligence liability is conceptually flawed and normatively unconvincing.

John Fanning, Mental Capacity as a Concept in Negligence: Against an Insanity Defence, Psychiatry, Psychology and Law. Published online: 23 Apr 2017.

Alexandra Buckingham, ‘Considering Cultural Communities in Contract Interpretation’

The art of contract interpretation involves determining the meaning of an agreement. Often, courts must determine whether a particular term is reasonably susceptible to more than one meaning, and if so, they engage in the process of disambiguating the term. This process involves a subtle dance between the traditional and the modern approaches to contract interpretation: the former looking merely to the ‘four corners’ of the contract and the latter considering extrinsic evidence to establish the intent of the parties. When encountering dissimilar cultural influences in common-law contract ambiguities, the courts apply an objective, ‘reasonable person’ standard, which inevitably dilutes cultural variance into a westernized and often short-sighted contract interpretation. After advocating for a ‘modern’ jurisdictional approach to contract interpretation, this Note will argue that guidelines within both the Uniform Commercial Code (UCC) and the Contracts for the International Sale of Goods (CISG) can provide a salient approach for introducing cultural evidence to tackle cultural conflicts arising during contract interpretation. This Note advocates for the admission of cultural extrinsic evidence to both create ambiguity and resolve ambiguity. The notion of culture advocated for in this Note embraces dismantling the concept’s vagueness into more concrete constituents of social relations. This method of cultural contract interpretation provides the greatest opportunity to recognize cultural conflicts within ambiguous terms and thus avoids blindly engaging in cultural compulsion.

Alexandra Buckingham, Considering Cultural Communities in Contract Interpretation, 9 Drexel Law Review 129 (2016).

Jay E Grenig, ‘The Civil Jury in the United States’

This Article explores the evolution of the civil jury in the American judicial system. The origins of the civil jury are functionally linked to ancient origins, and are a direct descendent from the English jury system. The civil jury system is both similar and distinct from the criminal jury system, with the civil jury system being an adapted form of the criminal system. The Article explains the expansive and critical role the civil jury plays in the implementation and development of the law. Important to this discussion is an understanding of where the jury began in the American system, and in what regard the role of a jury has been expanded and reduced in both civil and criminal disputes …

Jay E Grenig, ‘The Civil Jury in the United States’, North Dakota Law Review 92: 65 (2017).

Evan Criddle, ‘Liberty in Loyalty: A Republican Theory of Fiduciary Law’

Conventional wisdom holds that the fiduciary duty of loyalty is a prophylactic rule that serves to deter and redress harmful opportunism. This idea can be traced back to the dawn of modern fiduciary law in England and the United States, and it has inspired generations of legal scholars to attempt to explain and justify the duty of loyalty from an economic perspective. Nonetheless, this Article argues that the conventional account of fiduciary loyalty should be abandoned because it does not adequately explain or justify fiduciary law’s core features. The normative foundations of fiduciary loyalty come into sharper focus when viewed through the lens of republican legal theory. Consistent with the republican tradition, the fiduciary duty of loyalty serves primarily to ensure that a fiduciary’s entrusted power does not compromise liberty by exposing her principal and beneficiaries to domination. The republican theory has significant advantages over previous theories of fiduciary law because it better explains and justifies the law’s traditional features, including the uncompromising requirements of fiduciary loyalty and the customary remedies of rescission, constructive trust, and disgorgement. Significantly, the republican theory arrives at a moment when American fiduciary law stands at a crossroads. In recent years, some politicians, judges, and legal scholars have worked to dismantle two central pillars of fiduciary loyalty: the categorical prohibition against unauthorized conflicts of interest and conflicts of duty (the no-conflict rule), and the requirement that fiduciaries relinquish unauthorized profits (the no-profit rule). The republican theory explains why these efforts to scale back the duty of loyalty should be resisted in the interest of safeguarding liberty.

Evan Criddle, Liberty in Loyalty: A Republican Theory of Fiduciary Law, Texas Law Review 95:993 (2017).

Riaz Tejani, ‘Efficiency Unbound: Processual Deterrence for a New Legal Realism’

Optimal deterrence theory seeks to promote resource maximization by identifying the most economically useful occasions and magnitudes for legal liability. But liability is only the final outcome of a burdensome process made more onerous for many today by widening inequalities in wealth and access to justice. Omission of this may reflect a preoccupation among tort theorists with large corporate actors and a drift further from the dilemmas of individual and social justice. Select lessons from American Legal Realism prompt us to go beyond liability to think about the deterrent function of legal process itself. These lessons challenge us to consider the interpretive dimension of human behavior in its response to not only norm enforcement but also threats thereof. Taking up that challenge, this Article suggests that considerations of optimal deterrence should account for the behavioral impact of what it terms the ‘specter of process’, in other words the fear of litigation itself, and that doing so requires a stronger bridge between economic and interpretive empirical studies of law. The revised theory may be said to include processual deterrence, the degree to which the behavior of legal subjects is shaped ex ante by fears of being implicated in the burdens of litigation.

Riaz Tejani, Efficiency Unbound: Processual Deterrence for a New Legal Realism, UC Irvine Law Review, 6:207 (2016).

Carbone and Levit, ‘The Death of the Firm’

This Article maintains that the decision in Burwell v Hobby Lobby, which referred to the corporation as a legal fiction designed to serve the interests of the people behind it, signals the ‘death of the firm’ as a unit of legal analysis in which business entities are treated as more than the sum of their parts and appropriate partners to advance not just commercial, but public ends. The Hobby Lobby reference to the firm as a fiction is a product of a decades-long shift in the treatment of corporations. This shift reflects both an ideological embrace of the free-market-oriented ‘agency-cost’ school of corporate analysis and a material change from the brick-and-mortar corporations of the industrial era to the network-like operations of the technological age. As ‘the firm’, that is, the corporate form used to structure most business organizations, becomes less dependent on fixed supply chains and hard-to-assemble labor forces, the networks that determine employee motivation, security, and career mobility also change. These shifts fundamentally alter the relationship of people to companies, as owners, executives, shareholders, and employees all become more mobile. This Article is the first to link the Supreme Court’s revised conception of the firm to the role of the state. If Hobby Lobby owners have the First Amendment right to choose for their employees what publicly subsidized health care benefits to make available, the corollary should be that individuals should not be dependent on employers for access to basic public benefits. The new networked era should encourage individual as well as corporate flexibility.

June Carbone and Nancy Levit, The Death of the Firm, Minnesota Law Review 101:963 (2017).

Yuracko and Avraham, ‘Valuing Black Lives: A Constitutional Challenge to the Use of Race-Based Tables in Calculating Tort Damages’

In 2011, a young couple eagerly expecting the birth of their first child moved into an apartment in Brooklyn, New York, excited to have a new home for their growing family. Their child, a son, was born healthy soon thereafter. One year later, however, the couple received devastating news. A routine medical exam had detected lead in their young son’s blood. It turned out that the dust from lead paint in their new home had been quietly poisoning their baby. The family quickly moved out, but permanent damage to the baby’s central nervous system had been done. Over the next several years he would manifest significant cognitive delays as well as severe social and emotional impairments. The baby’s mother sued and the landlord was found negligent.

In calculating damages, the critical question for the jury was how much would this young child have earned over the course of his life had he not become injured. In answering this question, experts for both the plaintiff and the defendant took into consideration, albeit to different extents, the fact that the baby was Hispanic and used this fact to offer lower damage estimates than they would have had the baby been white. Relying on race-based data to calculate tort damages is, after all, standard practice. The only thing unusual about the case was that the judge, Jack Weinstein, of the Eastern District of New, refused to allow it.

Yuracko, Kim and Avraham, Ronen, Valuing Black Lives: A Constitutional Challenge to the Use of Race-Based Tables in Calculating Tort Damages (April 19, 2017). U of Texas Law, Law and Econ Research Paper No E569.

William Magnuson, ‘The Public Cost of Private Equity’

This Article presents a theory of the corporate governance costs of private equity. In doing so, it challenges the common view that private equity’s governance structure has resolved, or at least significantly mitigated, one of the fundamental tensions in corporate law, that is, the conflict between management and ownership. The Article argues that this widespread perception about the corporate governance benefits of private equity overlooks the many ways in which the private equity model, far from eliminating agency costs, in fact exacerbates them. These governance costs include compensation structures that incentivize excessive risk-taking, governance rights that provide investors with few avenues for effective information and control, and side agreements that allow for differential treatment of investors. Together, these arrangements create opportunities for private equity firms to extract rent from portfolio companies at the expense of their investors. After identifying the source of these problems, the Article proposes a set of reforms aimed at reducing the misalignments within the industry.

Magnuson, William J, The Public Cost of Private Equity (April 19, 2017). Minnesota Law Review, Volume 102 (2017 forthcoming).