‘Buying Silence With a Bluff: How NDAs Exploit Litigants, With and Without Counsel’

“The ever-growing use of non-disclosure agreements (NDAs) prevents those who sign from being able to ‘disclose’ their experiences of reprehensible workplace discrimination. NDAs routinely silence the victims of sexual harassment, racism, bullying, and discrimination (among many other examples: for being pregnant, or requiring mental health leave, etc). Of questionable legality, NDAs are routinely demanded by defence lawyers in settlement negotiations …” (more)

[Julie Macfarlane, Slaw, 23 June]

Ivar Hannikainen and others, ‘Are There Cross-Cultural Legal Principles? Modal Reasoning Uncovers Procedural Constraints on Law’

Despite pervasive variation in the content of laws, legal theorists and anthropologists have often argued that laws share certain abstract features and even speculated that law may be a human universal. In the present report, we contribute cross-cultural data to this debate: Are there cross-cultural principles of law? Participants in eleven different countries (N = 3054) were asked whether there could be laws that violate certain procedural principles (eg, laws applied retrospectively or unintelligible laws), and also whether there are any such laws – in a between-subjects design. Confirming our pre-registered prediction, people reported that such laws cannot exist, but also (paradoxically) that there are such laws. These results document cross-culturally and cross-linguistically robust beliefs about the nature of law which defy people’s conception of how legal systems function in practice.

Hannikainen, Ivar and Tobia, Kevin and Almeida, Guilherme and Donelson, Raff and Dranseika, Vilius and Kneer, Markus and Niek, Strohmaier and Bystranowski, Piotr and Dolinina, Kristina and Janik, Bartosz and Keo, Sothie and Lauraityte, Egle and Liefgreen, Alice and Próchnicki, Maciej and Rosas Martinez, Alejandro and Struchiner, Noel, Are There Cross-Cultural Legal Principles? Modal Reasoning Uncovers Procedural Constraints on Law (June 10, 2021).

‘Egyptian Law and Contractual Justice’

“My doctoral thesis compares three legal systems are concerned, the French, the English and the Egyptian one. The choice of English law, in particular, is justified by the fact, that in practice, in recent years, English law has begun to take place on the Egyptian legal scene, especially in matters of arbitration and commercial contracts. Furthermore, English law brings very interesting and enriching ideas for Egyptian Law, in terms of a preventive tool of contractual balance, such as the doctrine of inequality of bargaining power …” (more)

[Yousra Chaaban, BACL, 23 June]

‘Business and Human Rights Symposium: Third Party Human Rights Harms and the Duty of Care’

“The North Mara gold mine in Tanzania has been under scrutiny for many years now. Reports paint a picture of ongoing corruption, environmental harms, and human rights violations, including the excessive use of force by private security and police forces working with the mining company. In 2013 a group of twelve individuals filed a lawsuit against Acacia Mining (formerly African Barrick Gold Plc) and North Mara Gold Mine Ltd in the High Court of London, alleging complicity in attacks by police against the local residents around the North Mara mine that resulted in deaths and injuries …” (more)

[Jindan-Karena Mann and Nicky Touw, Opinio Juris, 23 June]

Bregant, Robbennolt and Winship, ‘Perceptions of Settlement’

Most legal disputes end in settlement, but little is known about how people perceive settlement. Do people view settling defendants as responsible for the alleged conduct? Do they see settlement more neutrally, as a convenient resolution that avoids a costly trial? This article uses survey and experimental methods to begin answering these questions and to set the agenda for studying an important and mostly neglected area of inquiry: public perceptions of settlement. Survey participants report in their own words their inferences about parties’ reasons for settling legal disputes in a variety of contexts: #MeToo, policing, crime, regulatory enforcement, and tort. Participants’ rich responses informed an experimental study of the tort setting that compares perceptions of settlement with perceptions of other case outcomes such as a jury verdict or the filing of a legal case. Despite common models of settlement as a cost-benefit analysis not necessarily tied to responsibility, the data suggest that lay people attribute responsibility to settling defendants. The data also highlight factors that influence people’s inferences about settling defendants, including whether the defendant is an individual or entity. Understanding settlement is key to understanding the US legal system, and this empirical work on perceptions of settlement lays a foundation for analyzing the perceived legitimacy of a legal system in which settlement plays such a central role.

Bregant, Jessica and Robbennolt, Jennifer K and Winship, Verity, Perceptions of Settlement (June 16, 2021). Forthcoming, Harvard Negotiation Law Review, University of Illinois College of Law Legal Studies Research Paper No 21-13.

Lisa Pruitt, ‘Commentary on Boyles v Kerr (Texas 1993) for Feminist Judgments: Rewritten Torts Opinions’

This paper comments on Professor Cristina Tilley’s rewritten feminist opinion in Boyles v Kerr (Texas 1993). The Texas Supreme Court in Boyles v Kerr rigidly refused to extend the state’s negligent infliction of emotional distress (NIED) precedents to permit recovery when the plaintiff was a young woman (Susan Kerr) whose emotional distress was the consequence of her lover (Dan Boyles, Jr), in collaboration with three friends, surreptitiously videotaping the pair having sex and then sharing the video with his fraternity brothers at the University of Texas. But Justice Tilly’s feminist rewrite in the case makes clear that the salient doctrines were and are more than capacious enough to have permitted Kerr’s NIED recovery. In fact, the myriad opinions in Boyles, as well as their extensive discussion of NIED’s history and precedents, reveal a highly malleable claim, the evolution of which reveals clearly gendered themes and trends.

Pruitt, Lisa R, Commentary on Boyles v Kerr (Texas 1993) for Feminist Judgments: Rewritten Torts Opinions (2020). Working Paper/Commentary on Cristina Carmody Tilley’s Rewritten Opinion in Boyles v Kerr (forthcoming in Feminist Judgments: Rewritten Torts Opinions, Cambridge University Press 2020), UC Davis Legal Studies Research Paper forthcoming.

Michal Lavi, ‘The Good, the Bad, and the Ugly Behavior’

… Should the law provide a relief for online shaming? If so, when and how? This Article addresses these questions and aims to provide answers. It focuses on the shaming of ordinary people who are not public figures and are not corporations. It outlines the phenomenon, and addresses shaming’s virtues and flaws. Then it sets forth a taxonomy of three types of shaming: (1) ‘good shaming’ – shaming that is initiated by the court and carried out according to a judicial decision or recommendation; (2) ‘bad shaming’ – shaming an individual by spreading false defamatory rumors, or shaming that got out of control and evolved into defamation or harassment; and (3) ‘shaming the ugly behavior’ – the shaming of a person by private individuals for violating the law, or norms. This Article focuses on non-ephemeral online shaming. It examines whether search engines should remove links to search results that contain shaming, and if so, when …

Lavi, Michal, The Good, the Bad, and the Ugly Behavior (May 23, 2021). Cardozo Law Review, volume 40, no 6, 2019.

‘CJEU rules on platform liability under copyright law, safe harbours, and injunctions’

“Do platforms like YouTube and cyberlocker Uploaded directly perform copyright-restricted acts under Article 3 of the InfoSoc Directive? At what conditions is the hosting safe harbour under Article 14(1) of the Ecommerce Directive available? What may be the requirements for injunctions under Article 8(3) of the InfoSoc Directive? These are some of the questions that the German Federal Court of Justice had referred to the Court of Justice of the European Union (CJEU) in two separate cases, which were subsequently joined: YouTube, C-682/18 and Cyando, C-683/18 …” (more)

[Eleonora Rosati, The IPKat, 22 June]

Andrew Gold, ‘Book Review of: Stephen A Smith, Rights, Wrongs, and Injustices: The Structure of Remedial Law (Oxford University Press, 2019)’

This paper is a draft review of Stephen Smith’s recent book – Rights, Wrongs, and Injustices: The Structure of Remedial Law (Oxford University Press, 2019). The book offers a groundbreaking and deeply insightful theory of the remedies in private law. On Smith’s account, remedies are judicial rulings, and they are issued because they provide people with new reasons for action. This review will focus on a jurisprudential puzzle that lies at the center of the book. Rights, Wrongs, and Injustices provides an original account of the authority in court orders. I will suggest that the book is right that the authority in court orders is distinctive, but wrong in its analysis of what grounds that authority. Considering this question, however, sheds significant new light on the law of remedies and on private law as a whole.

Gold, Andrew S, Book Review of: Stephen A Smith, Rights, Wrongs, and Injustices: The Structure of Remedial Law (Oxford University Press, 2019) (June 10, 2021). Final version subsequently published in 79 Cambridge Law Journal 615 (2020).

‘If a Will is Never Probated, does it Make a Sound?’

Katheleen Guzman, ‘Wills Speak’, 85 Brooklyn Law Review 647 (2020). Interim Dean (Dean) Katheleen Guzman explores the pre-death relevance of a will by determining whether or when a will speaks. She analyzes the legal consequences of a validly executed will before death and the potential property rights of devisees of the will. The focus and thesis of the article reminded me of the adage, ‘if the tree falls forest and no one hears, does it make a sound?’ In translation, I thought, ‘Does a will make a sound (have a legal effect) if it is never probated?’ As professors, we typically teach that wills are testamentary documents that have no effect until after the death of a testator and probate by the court … (more)

[Phyllis C Taite, JOTWELL, 22 June]