Planet Money tackles litigation financing, champerty’

“One of my long-term favorite podcasts, Planet Money, last week tackled litigation financing. We talk a lot in Torts in law school about America’s runaway transaction costs and how they affect, or impede, civil justice. Litigation financing can seem like manna from heaven when one thinks of tragedy-of-the-commons problems such as climate change. But then there are the problems of corporatocracy, secrecy, and the distastefulness of commodification. Planet Money traces our distaste to champerty in British common law …” (more)

[Richard J Peltz-Steele, The Savory Tort, 10 October]

Delacroix and Lawrence, ‘Bottom-up data Trusts: disturbing the ‘one size fits all’ approach to data governance’

… This article proceeds from an analysis of the very particular type of vulnerability concomitant with our ‘leaking’ data on a daily basis, to show that data ownership is both unlikely and inadequate as an answer to the problems at stake. We also argue that the current construction of top-down regulatory constraints on contractual freedom is both necessary and insufficient. To address the particular type of vulnerability at stake, bottom-up empowerment structures are needed. The latter aim to ‘give a voice’ to data subjects whose choices when it comes to data governance are often reduced to binary, ill-informed consent ….

Sylvie Delacroix and Neil D Lawrence, Bottom-up data Trusts: disturbing the ‘one size fits all’ approach to data governance, International Data Privacy Law, Published: 1 October 2019.

Tiffany Colt, ‘The Resurrection of The Consumer Expectations Test: A Regression in American Products Liability’

Thirty-five of the forty-six states that acknowledge strict products liability utilize some form of risk-utility analyses to determine whether a product is defectively designed. In two recent court decisions, the supreme courts of Florida and Nevada departed from this majority trend for design defect analyses in product liability. In Aubin v Union Carbide Corp and Ford Motor Company v Trejo, the Florida Supreme Court and the Nevada Supreme Court, respectively, rejected the use of risk-utility analyses, including that endorsed by the Restatement (Third) and adopted the consumer expectations test.

This Note begins with a summary of products liability – namely, the history of design defect claims with special attention to the Restatement (Second)’s treatment of the consumer expectations test and risk-utility analyses, and the Restatement (Third)’s treatment of risk-utility analyses. Next, the author discusses current doctrinal trends of state supreme courts as well as the outlier decisions by the Florida Supreme Court in Aubin and the Nevada Supreme Court in Trejo. The author concludes by analyzing the arguments set forth by the supreme courts of Florida and Nevada to adopt the consumer expectations test as the sole standard, in contrast to the majority of states.

Colt, Tiffany, The Resurrection of The Consumer Expectations Test: A Regression in American Products Liability (2019). University of Miami International and Comparative Law Review, volume 26, 2019.

‘“The Law of Good People” and Corporate Law’

Yuval Feldman, The Law of Good People: Challenging States’ Ability to Regulate Human Behavior (2018). Yuval Feldman’s book, ‘The Law of Good People: Challenging States’ Ability to Regulate Human Behavior’ provides a thought-provoking framework to advance our understanding of how governments should deal with misconduct committed by normative citizens blinded by cognitive biases regarding their own ethicality. While it does not discuss corporate law, this novel framework can offer new insights on fundamental questions of corporate law, securities regulation, and corporate misconduct … (more)

[Assaf Hamdani, JOTWELL, 10 October]

Connell and Wilkinson, ‘Remedies when a tenant profits from unlawful sublease on Airbnb: Nice Place Property Management Ltd v Paterson

In Nice Place Property Management Ltd v Paterson [2018] NZDC 20936, a New Zealand court recently ordered a tenant to pay their landlord the roughly NZ$7,500 profit that the tenant had made while subletting the premises via Airbnb in breach of their lease. The orthodox position is that an account of profit for breach of contract is available only in exceptional cases. We argue that Nice Place is not such an exceptional case. However, we suggest that a court could make an award of ‘negotiating damages’, which are compensatory in nature, to reflect the landlord’s loss of the right to control the use of their land. This approach could result in a sum less than, or possibly more than, the tenant’s actual profit.

Simon Connell and Tim Wilkinson, Remedies when a tenant profits from unlawful sublease on Airbnb: Nice Place Property Management Ltd v Paterson, Oxford University Commonwealth Law Journal. Received 26 May 2019, Accepted 16 Jul 2019, Published online: 07 Oct 2019. Download citation

Francesco Paolo Patti, ‘Personalization of the Law and Unfair Terms in Consumer Contracts’

Unfair terms law as an area of consumer contract law becomes more and more important and, within the European context, new forms of enforcement are discussed in order to augment the level of effectiveness of consumer protection. Personalization of the law could have a significant impact on the way in which the unfairness control of clauses may be exercised by Courts and Authorities and augment its efficiency. In fact, at least in the European context, default rules are the main basis used to assess whether a term is unfair. Therefore, the paper investigates if a ‘personalization of the law’ or the creation of ‘microdirectives’ could have an impact in the way in which problems related to standard form contracts and consumer protection are tackled.

Patti, Francesco Paolo, Personalization of the Law and Unfair Terms in Consumer Contracts (October 8, 2019). Bocconi Legal Studies Research Paper No 3466214, October 2019.

Tessa Cooksley, ‘The Role of Unjust Enrichment in New Zealand’

This paper argues that courts should recognise unjust enrichment as a cause of action, mainly due to the structure and discipline this can bring to New Zealand’s private law. This paper explores the historical development of unjust enrichment, and its relationship to the general law of restitution. This involves an exploration of legal taxonomy, and the different roles the concept of unjust enrichment can play in a common law legal system. The current New Zealand position on unjust enrichment is unclear: it can be seen operating as a label, a legal principle and some argue it is a cause of action in its own right. This paper considers how other jurisdictions have treated the concept of unjust enrichment, before briefly outlining how the cause of action should be structured in New Zealand. Given its sometimes broad nature, this paper views unjust enrichment as a supplementary action, within the law of obligations: there to provide a remedy when one is necessary, even in the absence of a wrong or an agreement between the parties.

Cooksley, Tessa, The Role of Unjust Enrichment in New Zealand (October 8, 2019). Victoria University of Wellington Legal Research Paper, Student/Alumni Paper No 21/2019.

Bethencourt and Masferrer, ‘Developing the Civil Law of Incorporeal Things’

This article offers the legal profession a method to effectuate on behalf of authors, designers, or inventors who are residents of Louisiana (or for Louisiana transactions) the rights recognized by federal law on intellectual property (IP) and unfair competition by activating the civil law on incorporeal things. Additionally, it offers a way to enhance the civil law practitioners’ stock of solutions with the regular notions of property, contracts, and torts in IP and unfair competition law for fascinating results. Also, it enables civil law academia to teach IP and unfair competition law through regular courses such as property, contracts, and torts and cease to label them as special or sui generis fields of the law … (more)

Ricardo Bethencourt and Aniceto Masferrer, ‘Developing the Civil Law of Incorporeal Things’, 12 Journal of Civil Law Studies (2019).

Laurence Ingle, ‘Smart Contracts in Consumer Law: Does New Zealand Need to Wise Up?’

Blockchain-based smart contracts represent a shift towards an automated world. While their immutable and self-executing nature present numerous economic benefits, these characteristics give rise to issues. One of these issues is that the burden of issuing proceedings changes from a party looking to enforce the agreement to a party who wishes to relieve themselves of an automatic enforcement mechanism. The ‘practical burden’, as the paper terms it, could potentially be most problematic in a consumer context, which is characterised by a significant imbalance between contracting parties. The paper assesses consumer law in New Zealand to determine whether this issue will arise under the current law. The paper concludes that New Zealand’s current consumer law is practically robust, however it recommends some practical measures that can be taken by the Commerce Commission in order to prepare for smart contracts as a dominant method of transferring property.

Ingle, Laurence, Smart Contracts in Consumer Law: Does New Zealand Need to Wise Up? (October 9, 2019). Victoria University of Wellington Legal Research Paper, Student/Alumni Paper No 23/2019.

‘Rectifying “Mistaken” Applications of the Mistake Doctrine to Personal Injury Releases’

Grace M Giesel, A New Look at Contract Mistake Doctrine and Personal Injury Releases, 19 Nevada Law Journal 535 (2018). When one enters into a contractual agreement with another, expectations are created on both sides. Party A expects to receive something from Party B, and Party B expects to receive something in return from Party A. When courts become involved in contractual disputes, ensuring the fulfillment of these expectations is often one of their primary goals. The pursuit of this goal, however, must be balanced against other contracts principles, particularly those related to defenses against the enforceability of contracts. Professor Grace Giesel explores the balance between expectations and enforceability in her recent thought-provoking article, A New Look at Contract Mistake Doctrine and Personal Injury Releases. Professor Giesel’s article begins with an informative discussion about the terms typically included in a personal injury release agreement … (more)

[Eboni Nelson, JOTWELL, 9 October]