‘The Roberts Court’s Legacy in Class Action Jurisprudence’

Richard D Freer, ‘The Roberts Court and Class Litigation: Revolution, Evolution, and Work to be Done’, 51 Stetson Law Review (forthcoming 2022), available on SSRN. The rise in class action litigation has garnered significant scholarly and judicial attention over the past several decades, particularly in the United States. The Supreme Court of the United States under Chief Justice Roberts is perceived to be wary of, if not hostile to, class actions. A new paper by Richard Freer sheds light on the precise ways the Roberts Court has affected class action jurisprudence. The Court has released an average of more than two class action decisions a year since 2010, and in so doing, has revolutionized class action practice. Freer offers a retrospective on three areas of jurisprudence that makes plain the important role the Roberts Court has played in class actions, especially over the past decade … (more)

[Jasminka Kalajdzic, JOTWELL, 10 January]

‘Case Comment: FS Cairo (Nile Plaza) LLC v Brownlie [2021] UKSC 45′

“On 20 October 2021, the Supreme Court delivered its judgment in FS Cairo (Nile Plaza) LLC v Brownlie [2021] UKSC 45. The two issues on appeal were: (i) whether Lady Brownlie’s claims in tort passed through the gateway in paragraph 3.1(9)(a), CPR Practice Direction 6B (the ‘tort gateway’), in that ‘damage was sustained … within the jurisdiction’ so as to allow service to be effected on FS Cairo, a foreign defendant (the ‘tort gateway question’); and (ii) whether Lady Brownlie could rely on English law or must adduce evidence of Egyptian law in showing that her claims (both in contract and in tort) had a reasonable prospect of success (the ‘foreign law question’) …” (more)

[Maxie Chopard, UK Supreme Court Blog, 14 January]

‘Testing the Limits: Are Passengers of Drink Drivers Contributorily Negligent for Failing to Act on What They Ought to Have Known?’

“In Campbell v Advantage Insurance Co [2021] EWCA Civ 1698 the Court of Appeal has given guidance on the assessment of passengers’ contributory negligence in drink-driver cases. Dean Brown had driven the claimant, Lyum Campbell, and Dean’s brother, Aaron Brown, to a club. All three consumed significant quantities of alcohol and in the early hours of the morning Dean Brown drove Lyum away from the club. Aaron was left behind and took a taxi home …” (more)

[Samuel Ford, Ropewalk Chambers, 12 January]

William Moon, ‘Anonymous Companies’

Hardly a day goes by without hearing about nefarious activities facilitated by anonymous ‘shell’ companies. Often described as menaces to the financial system, the creation of business entities with no real operations in sun-drenched offshore jurisdictions offering ‘zero percent’ tax rates remains in vogue among business titans, pop stars, multimillionaires, and royals. The trending headlines and academic accounts however have paid insufficient attention to the legal uses of anonymous companies that are both ubiquitous and almost infinite in their variations.

This Article identifies privacy as a functional feature of modern business entities by documenting the hidden virtues of anonymous companies – business enterprises whose owners are practically untraceable to the general public. Anonymous companies were essential to launch the first abortion drug in the United States at a time when no pharmaceutical company was willing to touch for fear of backlash by anti-abortion activists. Anonymous companies today serve as ‘race-neutral’ public faces of Black entrepreneurs who conceal their race in order to more equitably compete in a marketplace infected with systemic racism. And anonymous companies are ubiquitous over the internet, enabling survivors of intimate partner violence to become financially self-sufficient entrepreneurs without fear of harassment or stalking.

This Article thus reveals privacy as a prevalent, yet under-theorized function served by modern business entities. In documenting their use in today’s commercial life, this Article makes two contributions to the literature. First, it disrupts prevailing accounts concerning the function of the corporate form, departing from scholarly accounts that predominantly conceptualize business entities as transactional cost-reducing devices that facilitate the pooling of capital for business ventures. This Article enriches these accounts by showing how protecting the identity of capital contributors from forced public disclosure – what it refers to as identity shielding – can advance important economic and humanistic interests. Second, it develops a policy framework that enables a more nuanced discussion balancing the interest in ameliorating the harm inflicted by anonymity, as well as harnessing the promise of identity shielding in promoting entrepreneurial risk-taking and human collaboration.

Moon, William J, Anonymous Companies (January 7, 2022). University of Maryland Legal Studies Research Paper no 1, 2022; Duke Law Journal, forthcoming.

Sarah Dadush, ‘Prosocial Contracts: Making Relational Contracts More Relational’

The COVID pandemic exposed the selfishness with which fashion brands deal with their overseas suppliers. When it hit, many brands simply abandoned their contracts, without giving notice to suppliers, paying for completed – even shipped – orders, and without considering the serious impacts of cancelation on workers. The pandemic exposed but did not create the extractive relational dynamics in the apparel sector; such dynamics existed long before anyone had heard of COVID-19. Given that the ‘real deal’ of international supply contracting tends to be excessively buyer-friendly, relational contract theorists likely would have correctly predicted that a pandemic-like event would lead to widespread contract abandonments by buyers. However, relational contract theory has little to say about how to improve the fairness of the relational dynamics at play, particularly with respect to non-parties. This Article seeks to take that next analytical step.

It is generally understood that contracts are relational, not just transactional. They both reflect and shape the relational dynamics between the parties. But contracts’ ‘relational power’ extends beyond the parties to encompass relationships with workers and their communities (people and planet). These groups can be understood as ‘contract stakeholders’, even if they have no rights under the contract. As such, contracts contain more than the terms of the deal. They contain the terms of (several) relationships. They express and enshrine relational values. Contracts can, therefore, be upgraded to enshrine better, fairer, more prosocial relational values that do a better job of upholding workers’ human rights. This Article explains why companies should seriously consider upgrading to ‘prosocial contracts’ because it is the right thing to do, but also because of the emergence of mandatory human rights due diligence legislation in Europe. Drawing on the United Nations Guiding Principles for Business and Human Rights (UNGPs), Iris Marion Young’s social connection model of responsibility, and the Model Contract Clauses developed by an ABA working group, this Article offers a practical framework for prosocial contracting. The framework operationalizes a ‘shared-responsibility model’ whereby both parties are responsible for ensuring the social performance of their contract.

Dadush, Sarah, Prosocial Contracts: Making Relational Contracts More Relational (January 5, 2022). Law and Contemporary Problems, volume 85, no 2, 2022.

Sherally Munshi, ‘Dispossession: An American Property Law Tradition’

Universities and law schools have begun to purge the symbols of conquest and slavery from their crests and campuses, but they have yet to come to terms with their role in reproducing the material and ideological conditions of settler colonialism and racial capitalism. This Article considers the role the property law tradition has played in shaping and legitimizing regimes of racialized dispossession past and present. It intervenes in the traditional presentation of property law by arguing that dispossession describes an ongoing but disavowed function of property law. As a counter-narrative and critique of property, dispossession is a useful concept for challenging existing property arrangements, often rationalized within liberal and legal discourse.

Munshi, Sherally, Dispossession: An American Property Law Tradition (January 1, 2022). Georgetown Law Journal, volume 110, no 2, 2022.

Rothstein and Irzyk, ‘Physician Liability for Suicide after Negligent Tapering of Opioids’

To dissipate the opioid crisis physicians have been urged not to prescribe opioids for new patients and to limit opioids prescribed for established patients. The precipitous and medically contraindicated reduction or ‘tapering’ of opioids for patients with chronic pain due to serious medical conditions has caused needless suffering and, increasingly, suicide. A physician’s negligence in tapering opioids resulting in a patient’s suicide could be the basis of substantial legal liability.

Rothstein, Mark A and Irzyk, Julia, Physician Liability for Suicide after Negligent Tapering of Opioids (December 15, 2021). Journal of Law, Medicine and Ethics (2022).

‘Tokenization of intellectual property for IP rights management’

“Interest in blockchain technology, tokens, and IP, continues apace. Consider the recent WIPO webinar, ‘Blockchain Whitepaper for IP Ecosystems’, at which the view was expressed that the future of IP management rights could include a solution that utilizes tokens, and, in particular, non-fungible tokens. While the tokenization of IP, namely for anti-counterfeiting purposes, was already outlined by the European Intellectual Property Office several years ago, WIPO sees potential applications of blockchain technology in IP ecosystems for ‘[a]ll types of IP assets: Registered and Unregistered Rights’ …” (more)

[Julia Hugendubel, The IPKat, 13 January]

Martin Senftleben, ‘EU Copyright 20 Years After the InfoSoc Directive – Flexibility Needed More Than Ever’

EU copyright legislation has cultivated the constraining function of the three-step test known from Article 9(2) of the Berne Convention, Article 13 TRIPS and Article 10 of the WIPO Copyright Treaty. Instead of transposing into EU law the dualistic concept of these international provisions – the enabling function that creates room for the adoption of copyright limitations at the national level as well as the constraining function that sets limits to domestic copyright limitations – Article 5(5) of the 2001 Information Society Directive and Article 7(2) of the 2019 Digital Single Market Directive reduce the three-step test to the constraining function that further restricts copyright limitations and exceptions (L&Es) which are circumscribed precisely anyway. In the EU, the three-step test cannot be invoked as an instrument to extend the scope of L&Es or create new L&Es to avoid overbroad copyright protection. The jurisprudence of the Court of Justice of the European Union (CJEU) enhances the constraining effect by placing the three-step test in the context of the obligation to interpret L&Es strictly and allowing the balancing of copyright protection against competing fundamental freedoms only within the statutory system of rights and limitations in EU copyright law.

The result is a three-step test that has been transformed from a flexible balancing tool into a robust straitjacket of copyright L&Es. After the CJEU decision in Pelham, the three-step test even determines the maximum space for freedom of expression and information, freedom of the arts, freedom of the press and freedom of science. Considering that the fundamental rights in the EU Charter of Fundamental Rights have a higher rank in the norm hierarchy than the three-step tests in EU copyright law, this development is highly inconsistent and worrisome. It may even lead to a disproportionate, unconstitutional maximization of copyright protection. Against this background, the analysis discusses ways out of the dilemma and makes recommendations for a different approach that would render the EU copyright infrastructure for L&Es more flexible. As a result, EU copyright law would become capable of satisfying cultural, social and economic needs in times of rapid technological change – with beneficial effects for society as a whole.

Senftleben, Martin, EU Copyright 20 Years After the InfoSoc Directive – Flexibility Needed More Than Ever (November 1, 2021).

Chell v Tarmac – The Common Law Unmoved on Vicarious Liability and Direct Duty’

“On 12th January 2022, judgment was handed down in Andrew Chell v Tarmac Cement and Lime Limited [2022] EWCA Civ 7. This was the second appeal from the decision of HHJ Rawlings (‘the judge’) sitting at Stoke-on-Trent County Court on 14 October 2019. He had dismissed the claim by Mr Chell (‘the appellant’) for personal injury and damage, which occurred during the course of his employment on 4 September 2014 …” (more)

[Patrick Limb QC and Andrew Lyons, Ropewalk Chambers, 13 January]