Claudia Haupt, ‘Platforms As Trustees: Information Fiduciaries and the Value of Analogy’

This article responds to Lina Khan and David Pozen’s ‘A Skeptical View of Information Fiduciaries’. Their thoughtful critique responds to Jack Balkin who has argued that the law should treat online service providers as ‘information fiduciaries’, based on an analogy to the fiduciary duties of professionals such as lawyers and doctors. Khan and Pozen’s critique is twofold. They suggest that the fiduciary analogy Balkin offers falls short, and, moreover, that the overall approach of imposing fiduciary duties unhelpfully obfuscates deeper concerns with the platforms’ business model and their dominant market position. This Response takes up the first aspect of their critique.

This Response reexamines the professional fiduciary analogy and outlines the implications of analogizing information fiduciaries to other traditional fiduciaries. Cautioning against over-reliance on professional fiduciaries as the model, I suggest that information fiduciaries in many respects are more usefully analogized to trustees than to professionals. Ultimately, analogies are imperfect and different fiduciary models seek to solve different sets of problems. To find the appropriate new set of duties to impose on platforms, we should not rely on one model alone.

Haupt, Claudia E, Platforms As Trustees: Information Fiduciaries and the Value of Analogy (August 5, 2020). 134 Harvard Law Review Forum (2020, forthcoming), Northeastern University School of Law Research Paper No 387-2020.

Larry DiMatteo, Review of Isabel Zuloaga, Reliance in the Breaking‐Off of Contractual Negotiations: Trust and Expectation in a Comparative Perspective

Isabel Zuloaga, Reliance in the Breaking-Off of Contractual Negotiations: Trust and Expectation in a Comparative Perspective, Cambridge, Intersentia, 2019, xxxviii + 254 pp, hb, €69. The title accurately describes the content of the book – a focused comparative analysis of one area of precontractual liability (breaking-off negotiations), albeit an important and controversial one. The book is at its best in describing the nuances of the four chosen legal systems, although a fuller analysis of the common law would have made it better. Nonetheless, there is a lot to learn from this book for scholars and especially for students. Its theoretical ambitions are a bit less satisfying, the idea of reliance and not good faith as the basis for precontractual liability is not a novel one, but its application to breaking-off of negotiations is an interesting application given that that much of the discussion in this area revolves around the duty of good faith …

Larry A DiMatteo, Isabel Zuloaga, Reliance in the Breaking-Off of Contractual Negotiations: Trust and Expectation in a Comparative Perspective, Modern Law Review, DOI: 10.1111/1468-2230.12566. First published: 7 August 2020.

Matthew Collings, ‘The duties of a resulting trustee’

The precise duties surrounding express trusts have caused issues enough (as we explore in this journal) – but what of the duties of resulting trustees? They have been considered in the authorities, and have been the subject of academic commentary, but have nevertheless remained somewhat opaque. A recent judgment in the Court of Appeal in Singapore (its highest court) has thoroughly traversed the principal English and Commonwealth authorities and collated the academic articles. It provides a comprehensive and valuable insight into the duties of resulting trustees.

Matthew Collings QC, The duties of a resulting trustee, Trusts and Trustees, Published: 4 August 2020.

Enrico Rossi, ‘Reconsidering the Dual Nature of Property Rights: Personal Property and Capital in the Law and Economics of Property Rights’

In the last two decades, a renewed interest in property rights have challenged the accepted interpretation of property rights as ‘bundle of rights’ over the use of things and have rehabilitated the old classical interpretation of property rights as exclusive (absolute) dominium over things rooted in the right to exclude. This paper provides a three-dimensional framework for the study of property rights and shows that, historically, the reason for this dual nature of property rights derives from the fact that properties can either be treated as personal property, or capital. While the classical approach is consistent with the former interpretation, the neoclassical (‘bundle of right’) approach is consistent with the latter. By reinterpreting the dual nature of property rights as a dichotomy between capital and personal property the work makes two main contributions to the debates in the legal and economic literature. First, it re-evaluates and justifies the interpretation of property rights as a ‘politically-embedded’ bundle of right provided by legal realist, old progressive and institutional economists at the turn of the twentieth century. Second, it reassesses the conclusions reached by the Coasean legacy in law and economics; the paper shows that transaction costs are necessary and sufficient to explain the emergence and the form of legal institutions only in pure capitalistic societies, but cannot explain the emergence and the nature of legal institutions whenever personal properties are involved. Additional normative assumptions explaining the origin and the legitimacy of value judgments are needed to understand and explain the dual nature of property rights and to make sense of the decisions to employ personal properties as capital (or vice versa). This highlights the often neglected (but decisive) role played by the rationality assumption in legitimizing the normative conclusions reached by Coasean law and economics (and welfare economics more generally). It also highlights that the normative power of transaction costs is always institution-determined (socially-embedded), never institution-determining.

Enrico Rossi, Reconsidering the Dual Nature of Property Rights: Personal Property and Capital in the Law and Economics of Property Rights (June 2020 Draft).

Pavlos Eleftheriadis, ‘Corrective Justice Among States’

The debate concerning solidarity and justice among states has missed the key contribution made to international affairs by corrective justice. Unlike distributive justice, which applies within states, corrective justice applies among states. It applies in particular to cooperative arrangements creating interdependence among them. Corrective justice does not require fairness in outcomes. It requires redress in cases of loss caused by unfairness. An illustration of corrective justice among states is the Eurozone’s response to the financial crisis. The assistance offered to the most burdened states was not as an attempt to arrive at fair shares but an attempt to remedy the losses unfairly caused by the mistakes made by the Eurozone as a whole, when designing its basic architecture …

Pavlos Eleftheriadis, Corrective Justice Among States, Jus Cogens volume 2, pages 7–27 (2020).

Berry v CCL Secure Ltd

“The High Court has unanimously allowed an appeal against part of a judgment of the Full Federal Court of Australia, holding that in a case where a defendant had terminated an agreement by deceptive means, the balance of probabilities showed that the defendant would not have used lawful means. The burden of proof thus shifted to the defendant to show that it would in fact have used lawful means, which it failed to establish …” (more)

[Katy Barnett, Opinions on High, 7 August]

‘Co-Trustees Can Sue To Remove A Co-Trustee Due To Hostility’

“In the Texas Court of Appeals case, Ramirez v Rodriguez, three co-trustees used a fourth trustee to have him removed ‘due to his hostile actions: he has engaged in a pattern of creating hostility and friction that impeded and/or affects the operations of the trust’. The fourth trustee (defendant) moved to dismiss the suit, however, the court of appeals affirmed the lower court’s decision and denied the dismissal …” (more)

[Gerry W Beyer, Wills, Trusts and Estates Prof Blog, 7 August]

Marex Financial Ltd v Sevilleja: Some Commentary in Response to Paul Davies’s Blog Contribution’

“Paul L Davies’s blog piece on Marex Financial Ltd v Sevilleja [2020] UKSC 31; [2020] 3 WLR 255, concerned with the intractable topic of ‘reflective loss’ claims is, with respect, a model of clarity. He favours the majority view in that case, found in the judgments of Lord Reed and Lord Hodge, namely that where a shareholder has a private law claim arising out of action that also involves a wrong done to the shareholder’s company, the shareholder cannot sue for their loss to the extent that that loss is simply a diminution in the value of their shares in the company …” (more)

[Peter Watts, Oxford Business Law Blog, 7 August]

Rob Batty, ‘Is it Bad Faith to Apply for a Trade Mark You Don’t Intend to Use?’

European trade mark law appears to have a growing influence on the interpretation of New Zealand’s Trade Marks Act 2002 (2002 Act). As such, the recent decision of the Court of Justice of the European Union (CJEU) in Sky Plc v SkyKick will be of significant interest. This article outlines the context of the SkyKick litigation and analyses the CJEU’s approach to determining whether it is bad faith to file a trade without a genuine intention to use. It then evaluates the judgment’s potential impact on New Zealand trade mark law and practice concerning intent to use and bad faith. The article explains how, given the other ways the 2002 Act regulates the requirement for an applicant to have an intention to use the trade mark applied for, the SkyKick judgment may have a more pronounced influence on the interpretation of other statutory provisions. The article argues that such developments may further complicate New Zealand trade mark law’s approach to an intention to use requirement.

Batty, Rob, Is it Bad Faith to Apply for a Trade Mark You Don’t Intend to Use? (June 8, 2020). (2020) 9 New Zealand Intellectual Property Journal 79.

‘Justice as a Virtue’

“The notion of justice as a virtue began in reference to a trait of individuals, and to some extent remains so, even if today we often conceive the justice of individuals as having some (grounding) reference to social justice. But from the start, the focus on justice as a virtue faced pressures to diffuse, in two different ways. First, ‘justice as a virtue’ is ambiguous as between individual and social applications. Rawls and others regard justice as ‘the first virtue of social institutions’ (1971, p 3), but Rawls is not the first to think of justice as a virtue of social institutions or societies …” (more)

Stanford Encyclopedia of Philosophy. First published Fri Mar 8, 2002; substantive revision Fri Aug 7, 2020.