Private Law Consortium, Day 2 part a — Yonathan Arbel

Post by Yonathan A. Arbel

Continuing Janet Freilich‘s post covering the first day of the consortium, here follows my take on the second day, which was also very successful. I will divide my summary to two separate posts, so wait for updates… In this post I cover the contributions of John Goldberg, Stephen Smith, and Robert Caso and Guilia Dore.

John Goldberg & Benjamin Zipursky: “The Fault in Strict liability”

Professor John Goldberg opened the day with a very ambitious paper, co-authored with Professor Ben Zipursky: characterizing strict liability in tort as liability for wrongs. This was a great way to open the day. A reminder: much of Goldberg & Zipursky’s earlier work establishes the claim that the law of tort is law for the redress of wrongs.  In short, they claim that each tort—battery, negligence, assault—is a wrong—a mistreatment of one person by another. This is in contrast to the Law and Economics account where there are no wrongs per se, just penalties and subsidies, and, stands also in contrast to many other philosophical accounts of torts.

The animating puzzle of this article is the question – if tort law is about wrongs, how can one make sense of the many instances in which tort liability appears to be strict (without regard to fault)? For example, how can an innocent trespass—one done despite the trespasser having taken all possible care to avoid trespassing—be considered a wrong? Goldberg and Zipursky take the view that an innocent trespass is a wrong because in the following sense: it violates a norm of conduct.  The fact that the norm is unforgiving—that it requires us to refrain from intentionally contacting or occupying land possessed by another even when there is no reason to know that the land is in fact possessed by another—does not undermine the cogency of describing violations of this norm as wrongs.

Having claimed that strict liability in tort is overwhelmingly wrongs-based, Goldberg and Zipursky do make a concession, however, for the case of strict liability for abnormally dangerous activities. They agree that in this case, liability is not grounded in wrongdoing, but rather is what they call “licensing-based.” In this relatively small class of cases, the licensee—such as a blasting company that, despite using care, causes harm to nearby property—does not commit a wrong, but must nonetheless compensate because the law requires compensation as a condition of engaging in the activity.

This account saves tort law from the puzzle of strict liability. While conceding a small island for abnormally dangerous activity, it reinforces the dominant nature of the law of torts as a law of wrongs. However, the account requires an explanation of why liability for abnormally dangerous activities, which is not wrongs-based, has traditionally been housed within a body of law that (according to the authors) is about wrongs. They contend that the anomalous inclusion of licensing-based strict liability for abnormally dangerous activities is explained in part by institutional reasons.  In a case of harm caused by blasting, for example, the suit might simultaneously allege claims for negligence and strict liability, so it will be convenient for the court to address these issues within a single framework. At the same time, the authors argue that the abnormally dangerous activity doctrine must be narrowly construed. Admitting too many non-wrongs into the law of tort will dilute what tort law is really about and for that reason is not recommended.

The presentation raises many important and difficult questions. A premise of their analysis is that the wrongs of tort law are defined in an ‘injury-inclusive’ manner: that, in tort, there is no wrong until there is harm. But how can action become wrongful only when harm occurs? Doesn’t that allow mere luck to determine what counts as wrongdoing? Another question concerns whether it really makes sense to think of violations of unforgiving duties as wrongs. If, in Vincent v. Lake Erie, it is right for the ship captain to leave his boat at the dock to spare it from the storm, how can it be a wrong to the dockowner?

Stephen Smith, “The Concept of a Remedy”   

Professor Stephen Smith followed with a presentation of a deep puzzle that underlies both contract law and law of remedies. He asked whether there is a difference between the rules of contract and the rules of remedies. If none exists, law of remedies is subsumed by contract law and has no independent existence. Luckily for the law of remedies, Professor Smith argues that there is a difference between and that it is a fundamental one. The difference lies in the distinction between rules and rulings. Rules are mostly about declaring duties, how people should act vis-à-vis each other, and are merely reflective of pre-existing obligations. But this does not say what courts should do. Rulings are, essentially, instructions for courts on how to react to a breach of rules. In this sense, the law of remedies is public law¸ for it governs public institutions not public relations.

What motivates his approach can be best seen by considering punitive damages. In his view, there is nothing that the defendant can do on her own to discharge the duty to pay punitive damages – neither paying them voluntarily nor mortification of the flesh will be sufficient. This is because the duty only comes into existence when the court decides that it exists. It does not exist prior to that and for that reason, it cannot be discharged.

His argument runs deeper. Compliance to rules rests on the moral power of the underlying obligation. Compliance to rulings, however, rests on the authority of the court. The use of remedies adds an additional layer of obligation to comply with private law norms. Importantly, rulings have symbolic meaning and so allow courts to express moral reprobation that rules cannot.

This argument is engaging and raises a lot of interesting questions. One question is about the allocation of risk. What if the defendant wrongly holds stocks which lose value in the interim between harm and judgment, and it can be proven that the plaintiff would have sold them rather than hold them – should the defendant pay their full value or their value at the moment of judgment? If the obligation to transfer the stocks only arises at the moment of judgment, the defendant need only return their present value. This arguably imposes on the plaintiff an additional harm. Another question concerns fraudulent conveyance: what happens if the defendant gifts all assets to a third party in the interim between harm and judgment?  Would that be fraudulent? The defendant could argue that she was under no liability at that time, so her actions were permissible.

Roberto Caso and Giulia Dore, “Copyright as Monopoly: The Italian Fire under the Ashes”

Closing the day were Professor Caso and Dr. Dore, who discussed copyright in the Italian context. In the US, it is conventional to think of copyright as a form of monopoly. This is not so in Italy. Attempts at legislative reform in Italy are frustrated due to regulatory capture of lawmakers by the copyright lobby (e.g., recording industry) and so the authors seek means of reforming the system through the courts.

At the European Union (EU) level, the area is heavily regulated. There is a high level of copyright protection, both by EU Court of Justice (who order to strike a ‘fair balance’ through the application of  principles like proportionality and reasonableness) and legislation (Dir 2001/29 and Dir 2004/48). Art. 17 par. 2 EUCFR (English version) further provides that “Intellectual property shall be protected.” But it is unclear whether the applicable principle allow for proportionality or reasonableness limitations on copyright.

The lack of clear guidance to consider consequences is problematic, for Italian courts hold a natural rights theory of copyright. A natural right conception motivate judges, in their view, to adhere to literal readings of the law and to avoid consequentialist reasoning that could infuse it with balancing mechanisms.

What the authors advocate is that Italian courts will move from the natural right view of copyright to a monopoly view of copyright. This move offers an interpretative and judicial leverage to place limits on the operation of copyright, and to open the road to a more consequentialist approach.

The authors propose, provisionally, that such a move can only be achieved by a change in legal culture. They believe that such a change might be made by teaching future generations comparative law on the issue.

The importance of this project is clear. Over-protection of copyright has considerable negative implications for the progress of knowledge, for innovation and for the market. I do wonder however how the authors would legitimize the transition they are offering. If lawmakers are reluctant to do it themselves, to what extent will the proposed transition by viewed as legitimate? Moreover, wouldn’t the legislator correct any changes through primary legislation?