‘States May do Away with Single Family Zoning, But What About the Covenants?’

6 November 2024 | Author: steve

Ken Stahl, ‘The Power of the State Legislature to Invalidate Private Deed Restrictions’, 50 Pepperdine Law Review 579 (2023). In recent years, some states have attempted to address the US housing crisis by pulling certain aspects of zoning control that affect housing supply away from local governments. In a few states, this preemption focuses on eliminating or limiting single-family zoning, while in others it more narrowly eliminates limits on accessory dwelling units (‘ADUs’). State preemption has shown some promise (and also faced some legal challenges). Some land use scholars have questioned whether changing zoning laws is enough to address housing supply and affordability because much single family housing in the US is within neighborhoods that are governed by covenants, conditions, and restrictions (‘CC&Rs’). Those CC&Rs often mirror or go further than the local zoning code when it comes to restrictions on density, height, and residential use. Ken Stahl’s new article addresses this concern head-on using examples from California which has both preempted local zoning and begun to limit or override certain CC&Rs … (more)

[Sarah Schindler, JOTWELL, 6 November 2024]

Posted in Land use and Environment, Property | Leave a Comment

Aman Gebru, ‘Cultural Appropriation as Passing Off’

6 November 2024 | Author: steve

ABSTRACT
Accusations of cultural appropriation – using cultural symbols from a culture that is not one’s own without consent, understanding, or respect – have sparked fervent debates across social, ethical, and legal perspectives. Beyond debates, there is an early trend of claimants asking courts to rule on cultural appropriation. Scholars who have explored the topic mostly focus on the lack of legal remedy under current law. This Article makes two contributions. First, it offers a novel taxonomy of cultural appropriation based on two spectrums – the cultural symbol’s level of diffusion and the commercial nature of the use. The taxonomy results in four types of appropriations. The article argues that legal remedy in three out of the four types of appropriations is unworkable without significant disruption to long-standing fundamental rights. These three categories are: diffused-non-commercial, diffused-commercial, and distinct-non-commercial. Second, it develops a new theory of ‘cultural passing off’ triggered within the fourth category – a cause of action against commercial use of a distinct symbol that falsely suggests affiliation with an identifiable source community. The Article outlines three elements needed for a successful claim: collective goodwill, commercial appropriation of a distinct cultural symbol, and deprivation of material advantage. This new theory is offered as a workable legal solution requiring relatively feasible legal reform to address a subset of cultural appropriation without disrupting fundamental rights.

Gebru, Aman K, Cultural Appropriation as Passing Off (September 10, 2024).

Posted in Intellectual Property | Leave a Comment

Danielle Frances D’Onfro, ‘Private Law without Precedent’

6 November 2024 | Author: steve

ABSTRACT
A common law system assumes that judges regularly issue new opinions that clarify and update the law over time. At the same time, our federal system assumes that state courts will do the bulk of judicial lawmaking, especially in private law. And, with a few exceptions, our broader legal system assumes that state private law has allocated entitlements and obligations into a coherent system. These assumptions have not been true for a long time.

This Article offers a comprehensive account of when and why these assumptions about the proper functioning of private law fail. It then uses this account to assess the status of private law as a system. This account begins with legal education, tracing the decline in how elite law schools teach and privilege private law topics. It turns to modern legal research tools, finding that they systemically miss large areas of state private law. Next, it recounts the structural and substantive barriers that courts face in updating private law doctrine, which, among many others, include under-resourced courts, expanded federal jurisdiction, the growth of alternative dispute resolution, and changed attitudes towards judicial lawmaking. While a century of prior scholarship has identified some of these individual problems, others have gone unrecognized, and this Article offers a novel account of how these pathologies interact and compound each other. Taken together, the account offered here reveals a troubled private law in which neither courts nor legislatures have ownership over maintaining private law as a system.

In the absence of a well-functioning private law system, contract has expanded its role. Here the story is one of co-determinacy: In fields where there is little recent private law precedent, contract fills the gap. At the same time, the familiarity of contract doctrine encourages courts to view disputes as contractual disputes rather than undertake the difficult work of updating less familiar doctrines. This phenomenon has systemic effects on the private law, tipping it in favor of those with more power over contracts – typically larger firms – while weakening the substantive guardrails that the rest of the private law had long placed on contract. The result is a private law that is less efficient and less responsive to social change—and one that ultimately undermines the legitimacy of the legal system as a whole.

D’Onfro, Danielle Frances, Private Law without Precedent (July 1, 2024).

Posted in Contract, General | Leave a Comment

Ralf Michaels, ‘Towards Sustainable Private Law Theory’

6 November 2024 | Author: steve

ABSTRACT
Sustainability presents the most pressing need for our world today. Private law plays a prominent role for that need. Yet when responses are considered for private law, they tend to be small – a right to repair, for example, or extended warranty periods, or new internationally mandatory rules in private international law – and thus disproportionate to the sizable challenges we face. We private lawyers hope to be able to outsource most of our concerns about sustainability to public law. I argue here that we have to do more of the work ourselves.

In a nutshell, this article addresses makes three arguments. First, sustainability presents a considerable challenge to private law because modern private law as it exists today is structurally incapable of responding to the demand for sustainability. The reason is not only that modern private law is focused on individuals, whereas sustainability concerns common, even planetary problems. The main reason is that private law, as it exists today, is aimed at growth based on destruction and extraction, and this is in direct conflict with sustainability.

A typical legal response to shortcomings in private law lies in public regulation. This response presumes that sustainability is a social, or public, concern. My second argument, in response, is that this presumption is questionable with regard to the three most important recipients of such externalities: the Global South, nature, and future generation. Moreover, planetary boundaries set absolute limits on externalizing altogether.

If private law is a problem and public law is not a solution, we must rethink private law to make it sustainable. And because, as I argue, the problems of private law are structural, making it sustainable requires nothing less than paradigmatic change. That is my third argument. Such paradigmatic change cannot be brought about through tinkering and bricolage. It requires nothing less than a rethinking of the very foundations of private law. This article can offer no more than some suggestions for a pathway towards such rethinking.

Michaels, Ralf, Towards Sustainable Private Law Theory (February 21, 2024), Oxford Studies in Private Law Theory: Volume III, Paul B Miller and John Oberdiek, eds, Oxford University Press, Forthcoming.

Posted in General, Land use and Environment | Leave a Comment

Einat Albin, ‘The Three-Tier Structural Legal Deficit Undermining the Protection of Employees’ Personal Data in the Workplace’

6 November 2024 | Author: steve

ABSTRACT
Even though personal data protection is a fundamental right, and legislation and the courts aim to pursue it, in practice, employees have no meaningful protection of their personal data within the workplace and have few opportunities to act, individually or collectively, to ensure the security of their data. In this article, I argue that a central reason for this state of affairs is the intersection of labour law and personal data protection regulation that creates a three-tier structural legal deficit. The three tiers are: the basic structure of labour law that ensures employer prerogative to use new technologies that are based on datafication almost unlimitedly; the consumer orientation of personal data protection regulation under the General Data Protection Regulation; and lack of specific labour law tools to protect personal data. By building on the structural understanding of the law, and by unravelling the three tiers, the article proposes robust labour law tools to enhance the protection of employees’ personal data.

€ (Oxford UP)

Einat Albin, The Three-Tier Structural Legal Deficit Undermining the Protection of Employees’ Personal Data in the Workplace, Oxford Journal of Legal Studies. Published: 2 November 2024.

Posted in Defamation and Privacy, Employment and Labour Law, European Private Law | Leave a Comment

‘X Has a New Forum Selection Clause’

6 November 2024 | Author: steve

The company formerly known as Twitter (‘X’) has announced that it will adopt new Terms of Service (‘TOS’) effective November 15, 2024. Among other things, the new TOS includes a new forum selection clause. The clause in the old TOS required lawsuits against X to be brought in California. The clause in the new TOS requires lawsuits against X to be brought in Texas. On its face, this change is not surprising … (more)

[John F Coyle, Transnational Litigation Blog, 5 November 2024]

Posted in Conflict of Laws, Consumer Law, Contract, Remedies and Procedure | Leave a Comment

Henry Deeb Gabriel, ‘The future of the transnational law of security rights: the emergence of security rights in electronic data’

6 November 2024 | Author: steve

This article addresses the future work that needs to be done to conform the law of transnational secured transactions to contemporary and evolving commercial needs and practices. Specifically, the creation of new classes of assets as well as new modes of providing for perfection of these assets need to be incorporated into the existing law of transnational secured transactions. To ground this discussion with the current transnational law of secured transactions law, I will use the UNCITRAL Model Law of Secured Transactions, as it is the prime contemporary example of transnational secured transactions. As with law in general, the Model Law is a product of its time, and future developments in commercial practice need to be accommodated …

€ (Oxford UP)

Henry Deeb Gabriel, The future of the transnational law of security rights: the emergence of security rights in electronic data, Uniform Law Review. Published: 1 November 2024.

Posted in Intellectual Property, Property | Leave a Comment

‘Prompts as code?’

6 November 2024 | Author: steve

Code as a literary work: Following lengthy discussion in the 1970s and 1980s, by 1991 in the EU and 1994 at the WTO level, the legal status of computer programs was a settled matter: software was to be treated under copyright as a literary work. Source code and object code are protected by copyright. As established in the seminal case C-406/10, SAS: … (more)

[Nuno Sousa e Silva, The IPKat, 5 November 2024]

Posted in European Private Law, Intellectual Property | Leave a Comment

Mark Wen-Hu Hsiao, ‘Revisiting Vandervell v IRC: Classification of the Option and Implications’

6 November 2024 | Author: steve

ABSTRACT
The paper revisits the leading judgment in Vandervell v IRC and demonstrates that the judicial reasoning fails to take into account the nature of option and construed it against the specific statute. By applying the method of classification, the paper demonstrates the nature of an option agreement as a sui generis. A construction of an option in part of commercial arrangement requires a two-stage classification: first, to identify obligations and rights, and second, to categorize the obligations and rights. The implications of the explanatory exercise placed the case law in a comparative context in demonstrating the interpretation of option as sui generis. The paper argues that categorization can achieve a coherent principle and certainty in the outcome of contractual interpretation, particularly given the evolving relationship between private law and positive law.

Hsiao, Mark Wen-Hu, Revisiting Vandervell v IRC: Classification of the Option and Implications (June 8, 2018), (2018) 33 (11) Journal of International Banking Law and Regulation 397-405.

Posted in Equity and Trusts | Leave a Comment

Ilias Bantekas, ‘Confirmation Notes in the English Common Law’

5 November 2024 | Author: steve

ABSTRACT
Confirmation notes allow parties to a final or near-final contract to specify the terms of their agreement and thus render it binding. As a result, the note may take the form of an offer or acceptance or, if so specified by the parties, it may just as well serve as the contract. Where the note does not serve as a contract, the receiver is presumed to have accepted its terms if it has not rejected within reasonable time. A confirmation note that adds, modifies or limits the parties’ original (usually oral) agreement has no effect, unless the receiver unjustifiably delays conveying its rejection thereof. Moreover, it should now stand as good law that the parol evidence rule is generally inapplicable where one of the parties seeks to prove the existence of a term based on a confirmation note.

Ilias Bantekas, Confirmation Notes in the English Common Law, 44 Pace Law Review 459 (2024).

Posted in Contract | Leave a Comment