‘Legal Theory Lexicon: Narrative and Normativity’

“Many law students learn about ‘narrative’ at some point in law school. Of course, narratives (or more simply ‘stories’) are all over the law. Individual cases include narratives in their recitation of the facts and procedural history. Sequences of cases can be studies as narratives, with events both internal and external to the law woven into a story about how and why the law changed. Some legal narratives stress the internal development of the law: the law works itself pure. Other legal narratives lay emphasis on forces external to the law: a Marxist narrative might explain legal change as a response to the interests of the capitalist class. Narratives like these seek to explain legal change. We might call them ‘causal narratives’ …” (more)

[Lawrence Solum, Legal Theory Blog, 27 September]

‘Masters of the Code’

Katharina Pistor, The Code of Capital: How the Law Creates Wealth and Inequality (2019). I teach at a school most of whose graduates take jobs, at least for a few years, as associates in one of the 100 largest corporate law firms. Until their first stint as summer clerks, and even for some time thereafter, most of them know very little about the work firm lawyers do. Law schools don’t do much to enlighten them on these matters. Scholarly treatments of the social effects of business lawyering are rare … (more)

[Robert Gordon, JOTWELL, 28 September]

Iain Field, ‘The Problem with Provocation in Trespass’

Should a defendant to an action in trespass be entitled to a reduction in compensatory damages on the basis of provocation by the claimant? Judges and academic commentators are divided on the issue, although the weight of authority is that, in Australia, New Zealand and the UK, no such reduction is permissible. This article demonstrates that the reasons conventionally offered in support of the current position are unpersuasive, and that a strong moral argument support the reduction of damages in many commonplace scenarios. However, the article also shows that the continued rejection of provocation might be justified on the grounds that no principled basis exists upon which to preclude its operation in normatively problematic contexts, such as domestic violence and unwanted sexual advances. It is suggested that the best solution would be for the common law to recognise a partial defence of provocation, subject only to certain principled limitations, leaving it to parliament to ‘carve out’ appropriate policy exceptions.

Iain D Field, The Problem with Provocation in Trespass, Modern Law Review, https://doi.org/10.1111/1468-2230.12582. First published: 28 September 2020.

Aino Asplund, ‘Lost in Accountability. “Comply or Explain”, “Apply or Explain” and “Apply and Explain” in a test: The Barriers to Company Benefit?’

This article scrutinises the disclosure and flexibility measures, that is, ‘comply or explain’, ‘apply or explain’ and ‘apply and explain’, affecting the application of corporate governance codes in Finland, the United Kingdom and South Africa. The article maintains that all the referred measures focus on safeguarding accountability towards either shareholders or a wider set of stakeholders and feed the mindless adaptation of the spirit of the codes. The measures thus lack flexibility, hindering the company and restricting its actions with regard to its own benefit. The article therefore suggests a new approach to the application of corporate governance codes.

Asplund, Aino, Lost in Accountability. ‘Comply or Explain’, ‘Apply or Explain’ and ‘Apply and Explain’ in a test: The Barriers to Company Benefit? (September 18, 2020). University of Oslo Faculty of Law Research Paper No 2020-24.

Voss and Bouthinon-Dumas, ‘EU General Data Protection Regulation Sanctions in Theory and in Practice’

Prior to the application of the EU General Data Protection Regulation (GDPR), one of the results of the relatively-low-level of legislatively permitted data protection violation administrative fines was, arguably, a lack of compliance by US Tech Giants, among others. At least on paper, this changed under the GDPR. This study approaches the issue of GDPR sanctions, not through the lens of a future catastrophe, but though a development first of the theoretical grounds for sanctions, prior to a view of the practical side of them. In doing so, it is somewhat unique and adds to the GDPR literature. Furthermore, it engages the legal strategy and compliance literature to bring its results home to inform companies as to the risks involved and to provide strategic recommendations both for companies and for regulators.

Among the several sub-goals of sanctions, this study determines that the most relevant for an analysis of GDPR sanctions – which are administrative, regulatory and financial sanctions, in large part – is the deterrence function, beyond the symbolic functions. This demands effective and substantial administrative fines. While these are not the only sanctions available under the GDPR – this study also sets out a range of possible sanctions, such as judicial compensation and orders to halt data processing – they are perhaps the most characteristic of data protection enforcement. However, through what is referred to as the one-stop-shop mechanism, the Irish DPA is the lead authority for most of the US Tech Giants, and it has failed to act against them up to now, resulting in a potential lack of deterrence. This study argues that, on the one hand, companies should embrace compliance, and the other hand, truly dissuasive administrative fines must be issued in order for the sanctions to have their necessary deterrence effect.

Voss, W Gregory and Bouthinon-Dumas, Hugues, EU General Data Protection Regulation Sanctions in Theory and in Practice (September 19, 2020). Forthcoming, Santa Clara High Technology Law Journal, volume 37 (2020).

Alyson Carrel, ‘Reimagining Settlement with Multi-Party Computation’

The recent revelation of individuals using NDAs to conceal rampant sexual harassment and assault demonstrates the ongoing debate about the impact of private settlement on the broader public good. Current unsatisfactory solutions are limited to a trade-off between whether to prioritize an individual’s interest in privacy over the public’s need for information. Advancing technology in multi-party computation (MPC) presents an option to reimagine how society settles disputes, transforming it from a debate mired in the choice between public or private to a system of pluralistic options, each of which offers parties the choice to settle with varying degrees of both private and public elements.

Carrel, Alyson, Reimagining Settlement with Multi-Party Computation (April 30, 2020), JTIP Blog (May 16, 2020), https://jtip.law.northwestern.edu/2020/05/19/reimagining-settlement-with-multi-party-computation/.

Beale and Twigg-Flesner, ‘COVID-19 and Frustration in English law’

In this chapter, we explore the ways in which the impact of COVID-19 on the performance of contracts would be dealt with under the doctrine of frustration in English law. Starting with the strict obligation to perform a contract, we outline the elements of the doctrine of frustration, including the operation of the Law Reform (Frustrated Contracts) Act 1943 and the possibility of contracting out of the Act. We then examine permanent, temporary and partial impossibility more closely. We also consider the relevance of force majeure and MAC clauses. We then identify elements of the doctrine of frustration which might be open to further development in the wake of the COVID-19 pandemic, although we do not anticipate significant changes to the law.

Beale, Hugh and Twigg-Flesner, Christian, COVID-19 and Frustration in English law (June 18, 2020) in Sergio Garcia Long, Derecho de los Desastres: Covid-19 (Pontificia Universidad Católica del Perú, 2020).

Keith Hall, ‘Ruminations on the Continuing Evolution of Trespass Law in the Context of Mineral Development’

A trespass is an unauthorized entry upon the land of another. In general, this is a fairly simple legal concept. Indeed, most non-lawyers have a pretty good idea of what ‘trespass’ means. But various complications can arise in the context of oil and gas or mining activities. Some of these complications arise from the property laws that govern the right to engage in mineral production. First, for example, multiple courts have concluded that an owner’s right to exclude others from her property – one of the sticks of ownership that lies at the heart of trespass claims – becomes attenuated at locations deep below the surface, just as this right becomes attenuated at substantial elevations above the earth. Second, the property laws of most states allow landowners to sever mineral rights from surface ownership. In such circumstances, both the surface estate owner and the mineral estate owner may have certain rights of use and possession in the same tract of land. They each may have some ability to assert trespass claims against the other, but the figurative boundaries between their respective rights in the tracts where they share ownership are not always as clear-cut as the literal boundaries between two neighboring, separate tracts of land …

Keith B Hall, Ruminations on the Continuing Evolution of Trespass Law in the Context of Mineral Development, 8 LSU Journal of Energy Law and Resources (2020).

‘Why We Don’t Need COVID-19 Immunity Legislation’

“Protections against COVID-19-related lawsuits remain a big piece of the debate over how Congress and state legislatures should respond to the ongoing pandemic. But there’s been an odd omission from the debate. No one seems to be asking who will pay for COVID 19 liability in the event that lawsuits are permitted to go forward. Proponents of immunity legislation assume that main street businesses will foot the bill for lawsuits. But our new research suggests that the vast majority of standard liability insurance policies in America cover COVID liability. COVID immunity legislation is really a bid to shelter big insurance companies, not mom-and-pop businesses …” (more)

[Josh Czaczkes, Tom Baker and John Fabian Witt, Balkinization, 26 September]