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Hanoch Dagan on “an Autonomy-Based Private Law” — John Golden

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Post by John Golden

In a paper posted on SSRN, The Challenges of Private Law: Towards a Research Agenda for an Autonomy-Based Private Law, Hanoch Dagan lays out a vision of private law as a “law of our interpersonal (horizontal) relationships” that strives to “establis[h] ideal frameworks for respectful interaction between self-determining individuals.”  Dagan thereby seeks to escape the “deadlock” between views of private law as (1) “a garden-variety mode of regulation” and (2) a branch of law whose focus on “individual independence” makes it “resistant to demanding interpersonal claims.”  Dagan argues that, in a world “of interdependence and of personal difference,” “tak[ing] seriously law’s commitment to autonomy as self-authorship or self-determination” requires subjecting private law to a “prescription of structural pluralism and [an] injunction of relational justice.”  In accordance with the prescription of pluralism, private law should provide individuals with “meaningful choices.”  Indeed, private law theory should “celebrate [a] multiplicity of contract types and property institutions rather than suppress … or marginalize them.”  In accordance with concerns of relational justice, private law needs provisions for “interpersonal accommodation” to help ensure that individuals “respect each other’s right to self-determination and thus to substantive equality.”

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Yale Law School’s Seminar in Private Law: The Role of Business Elites in Negotiating the End of Apartheid

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Post by Sadie Blanchard, Research Fellow Yale Law School

Last week’s session of the Seminar in Private Law at Yale Law School considered the role of business elites in negotiating the end of the apartheid state in South Africa. Michael Young discussed the secret negotiations he convened in England during his tenure at a British mining firm operating in South Africa between the African National Congress in exile and Afrikaner elites. Itumeleng Makgetla presented a paper she is coauthoring with Ian Shapiro that applies game theory to the role of South African business leaders in negotiating the transition to democracy.

Young set the stage by recalling how dramatically international relations in the 1980s were shaped by the Cold War’s iron division of the world. South Africa’s social, economic, political, and security conditions were deteriorating: a state of emergency had been declared; unemployment was rising; and foreign investment was fleeing. Prime Minister P.W. Botha had begun running the country through a security bureaucracy, alienating even members of his own party. Despite the widely recognized instability and injustice of the regime, the United States and the United Kingdom were unwilling to offer diplomatic support to a transition because of the ANC’s communist affiliations within and outside South Africa.  

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Efficient Breach? — Greg Klass

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Post by Greg Klass

I just read Robert Scott’s 2015 Boden Lecture at Marquette Law School, “Contract Design and the Shading Problem.” For anyone interested in what’s happening in the economic, instrumental and empirical analysis of business-to-business contracts, this is a great place to start.

There is a lot of interesting stuff in this piece, but here I want to mention only Scott’s argument that we’ve all been paying too much attention to the theory of efficient breach. This is a remarkable claim from the scholar who, together with Charles Goetz on 1977, coined the term “efficient breach,” and did as much as anyone to promote the theory early on. Scott now considers it unsatisfactory for an empirical reason: the theory does not describe most breaches. Rather than one party deciding it is in its interest to breach and pay damages, most breach of contract cases involve disputes—sincere or opportunistic—as to what the contract requires. The breach did not increase the size of the pie, but resulted from disagreement about how the pie was supposed to be divided. Theories that emphasize efficient breach therefore ignore what parties, at the time of contracting, really care about: avoiding disagreement in the gray zone, or what Scott calls “shading.” Scott concludes that, “while we meant well, Goetz and I are probably primarily responsible for leading a generation of scholars down the wrong garden path.”

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How Not to Read Bonds — Aditi Bagchi

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Post by Aditi Bagchi

In 2001, Argentina defaulted on about $92 billion worth of bonds.  It subsequently restructured these bonds, and 93% of bondholders accepted the 30 cents on the dollar that Argentina offered.  But some hedge funds bought the original bonds at a discount and held out on repayment.  They were able to persuade Judge Griesa in New York that a pari passu clause in the original bonds prohibited Argentina from treating new bonds differently than the original bonds, and the judge actually issued an injunction prohibiting Argentina from making payments on the new bonds – effectively locking Argentina out from capital markets.

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Smith on Newman on Bailments — Henry Smith

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Post by Henry Smith

Chris Newman has a new draft paper on SSRN on bailments (“Bailment and the Property/Contract Interface”).  The paper is provocative (yes, that is possible in a paper on bailments!) and deeply insightful.  Newman argues that much of the confusion about bailment contracts, and especially strict liability for deviation from such contracts, stems from a lack of understanding of which baseline is operative in various cases.  The article provides compelling reasons to think that the property baseline governs more than people usually think – and should do so. Like a license (a subject of Newman’s previous work), a bailment is a legal relation that can be created or shaped by contract, but it should not be identified with the contract. Indeed, in involuntary bailments (most prominently with finders), there is no contract at all.  But even where there is one, the bailment itself is just a giving of possession without a transfer of ownership.  The bailee has a license to do certain things with the thing, and if the bailee exceeds the scope of that license, then the bailee violates the in rem rights of the owner, just as other converters and trespassers might.

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Yale Law School’s Seminar in Private Law: Global Public Health Cooperation and Conflict

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Post by Sadie Blanchard, Research Fellow Yale Law School

This week’s session of the Seminar in Private Law at Yale Law School took up transnational cooperation to combat influenza. Professor Amy Kapczynski spoke together with Dr. Nancy Cox, former Chief of the CDC’s influenza division who was responsible for its cooperation with a global network, operating under the auspices of the WHO, of national flu research labs that shares influenza samples and isolates the strains of the virus used in vaccines.

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Social Perception of Testamentary Capacity — Tess Wilkinson-Ryan

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Post by Tess Wilkinson-Ryan I am teaching Trusts and Estates this semester, and we are currently covering standards for testamentary capacity. As a psychologist, I have a passing interest in cognitive ability and disability, but even moreso an interest in perceptions of capacity. A nice example of a case about social perceptions of mental health is … Read more

Yale Law School’s Seminar in Private Law: The Sociology of International Commercial Arbitration

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Post by Sadie Blanchard, Research Fellow Yale Law School Last week, I introduced a series of blog posts on Yale Law School’s Seminar in Private Law. The Seminar’s first session considered the sociology of international commercial arbitration. Emmanuel Gaillard and Yas Banifatemi of Shearman & Sterling’s international arbitration practice spoke alongside Emily Erikson, a professor of sociology … Read more

Yale Law School’s Seminar in Private Law: Dispute Resolution Beyond the State — Sadie Blanchard

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Post by Sadie Blanchard, Research Fellow Yale Law School

Over the coming term, the Seminar in Private Law at Yale Law School will explore dispute resolution outside the state. Disputes are often resolved through processes that fall outside any previously authorized political structure. Because such processes cannot rely on the state for legitimacy, they owe whatever authority they achieve to their own natures. To better understand this category of dispute resolution mechanisms, the Seminar will bring together scholars in law, the social sciences, and the human sciences and people who practice law, politics, medical research, human rights advocacy, university administration, and commerce to discuss their ideas and experiences concerning such free-standing efforts to resolve disputes.

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Yale Law School’s Seminar in Private Law: Outcomes and Authority in International Investment Law

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Post by Sadie Blanchard, Research Fellow Yale Law School

In the last meeting of the Seminar in Private Law, Jan Paulsson and Diane Desierto reflected on their experience in the field of international investment law and how that experience informs their views of the legitimacy questions facing the field. Participants also considered the theoretical basis of authority of international investment protection and asked about possible deleterious effects of this legal regime. Desierto cut her teeth as a government attorney for the Philippines while it was defending against its first investment treaty claim. She now represents investors and states in disputes and is a top advisor on investment treaties to the Association of South East Asian Nations (ASEAN). Paulsson is one of the most-appointed arbitrators in the field and has represented states and investors in disputes and advised states on treaty design.  

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Causation Theory and Tort Law: An Update — Keith Hylton

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Post by Keith Hylton

Causation has generated a great deal of theoretical writing in tort law.  The most recent issue of the Journal of Tort Law (volume 7, Issue 1-2, Jan 2014, published online 10/31/2015) includes a three-article mini-symposium on the “economics of causation.”  The JTL symposium authors are me, Mark Grady, and Richard Wright.  The contributions from Grady and from me consist of new insights on the economic theory of causation, and Wright contributes a critique.

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Property Scholarship Citation Counts — Eric Claeys

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Post by Eric Claeys, George Mason University Earlier this year, Ted Sichelman blogged here about the most-cited real property articles published in the last 25 years.   Property scholar Stephen Clowney (Arkansas-Fayetteville) just conducted a more topical citation count, for the last 5 years of property scholarship.  He describes his methods in his posting (and … Read more

First Do No Harm: The DIRECTV v. Imburgia Decision — Greg Klass

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Post by Greg Klass

Yesterday the Supreme Court released its decision in DIRECTV v. Imburgia. DIRECTV won. If Amy Imburgia wants to sue DIRECTV under its 2007 contract, she will have to go to bilateral arbitration. Once again: no class action. I think this is the wrong outcome in this case, for reasons I articulated here, here and here, and for many of the reasons Justice Ginsburg gave in her dissent. That said, Breyer wrote a majority opinion that should make critics of the Court’s recent arbitration decisions happy.

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Interpretation and construction 3: Arthur Linton Corbin — Greg Klass

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Post by Greg Klass

In this third post on the interpretation-construction distinction, I introduce the hero of my story: Arthur Linton Corbin. Corbin builds on Francis Lieber’s and Samuel Williston’s work (which I have discussed here and here) to articulate more perspicacious conceptions of interpretation and construction. Whereas both Williston and Lieber viewed construction as supplementing interpretation, Corbin sees the two activities as complementary. He gets there by collapsing Williston’s three categories of rules into two.

Corbin’s 1951 treatise on contract law provides, as far as I know, the first clear articulation of the complementary conception. Corbin describes interpretation and construction as interlocking activities, both necessary to determine what the law requires. It is worth quoting the relevant passage in full:

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Interpretation and Construction 2: Samuel Williston — Greg Klass

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Post by Greg Klass

In my last post on the interpretation-construction distinction I described Francis Lieber’s supplemental view of construction, which can be found in his 1839 book, Legal and Political Hermeneutics. Lieber’s view is characterized by two claims. First, construction is supplemental: it steps in only when interpretation runs out. Second, the activity of construction is for the most part continuous with that of interpretation. “Construction is the building up with given elements, not the forcing of extraneous matter into a text.” (144) That said, Lieber also recognizes that sometimes construction departs from the spirit of the text, such as when the text yields to a superior legal principle.

It would be interesting to trace the influence of Lieber’s distinction between interpretation and construction throughout the next century of legal thought. Theophilus Parsons, for example, discusses the categories in his 1855 Law of Contract. James Bradley Thayer, in his 1898 Treatise on Evidence, expressly declines to adopt Lieber’s distinction, arguing that “neither common usage nor practical convenience in legal discussions support [it]”. (411 n.2) For my purposes, things get interesting with the 1920 first edition of Samuel Williston’s The Law of Contracts. In section 602, “Construction and interpretation,” Williston makes what I view as two improvements on Lieber’s theory.

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Interpretation and Construction 1: Francis Lieber — Greg Klass

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Post by Greg Klass

In several posts on DIRECTV v. Imburgia (here, here and here), I suggested that the interpretation-construction distinction illuminates some of the Supreme Court’s recent arbitration cases. The interpretation-construction distinction has recently been receiving more attention from con law theorists than from contract theorists. (See, e.g., here, here and here.) I’ve been working on a larger project on contract interpretation and construction, and want to use a few posts here to share some of what I’ve learned about the history and development of the distinction. What I have only scratches the surface. The history is a rich vein waiting to be mined. These posts describe only the outlines of the story as I currently understand it. In my telling, it has three protagonists: Francis Lieber, Samuel Williston and Arthur Linton Corbin.

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North American Workshop on Private Law Theory — Eric Claeys

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Post by Eric Claeys, George Mason University

Before we get too far into November, some friend of this blog should say a word about the third North American Workshop on Private Law Theory.  (“NAWPLT”). NAWPLT is an annual workshop organized by Henry Smith, John Goldberg, Andrew Gold, Steve Smith and Paul Miller (McGill), and Dennis Klimchuk (Western Ontario).  The NAWPLT organizers usually select eight or nine papers, diversified to cover each of the four major fields of private law: tort, contract, property, and restitution-plus-remedies.  The papers are also diversified to show off a wide range of methodologies—analytical methods, different traditions of normative philosophy, and on occasion conceptually-respectful economic analysis.   I always enjoy going because NAWPLT is refreshing for me.  As an American scholar, most of the private law scholarship I encounter at conferences tends to be reform-oriented or economic in focus.  At NAWPLT, I get reminded that, in some parts of the English-speaking scholarly community, analytical and philosophical methods are taken seriously and applied well to private law.  

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Is a Covenant-Not-To-Sue A License? — Christopher Newman

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Post by Christopher Newman, George Mason University.

Thanks to Jorge for his thought-provoking post.  It’s a thrill to have smart people find your work worth picking up and using for something.  Here are a few responsive thoughts of my own.

Because the term “license” encompasses a variety of interests comprising differing sets of jural relations, I think it’s important to specify what exactly is at stake in any given context when we ask “does a CNS amount to a license”?   As Jorge notes, the actual posture of Meso makes it a bad vehicle for this (nevertheless important and interesting) question, because the argument there really has nothing to do with identifying the substantive content of the property interest (if any) that accrues to the obligee of a CNS.   Meso is trying to obtain standing to enforce use restrictions that are purely contractual; bizarrely, they are in the position of arguing the equivalence of contract and property not to draw implications that sound in property, but simply to make a round trip back into contract.

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There Is No General Tort Law — Sandra Sperino

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Post by Sandra Sperino, Associate Dean of Faculty and Professor of Law, University of Cincinnati College of Law.

In the discrimination context, the Supreme Court has declared that when Congress creates a federal tort it adopts the background of general tort law.  One reason that it is difficult to apply traditional tort law to discrimination cases is that there is no such thing as “general” tort law.  Tort law may use similar words in different torts, but these words often have different meanings, depending on the tort to which they are attached.  Many tort doctrines differ depending on the underlying pocket of obligation being considered.

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Missing the Mark on Duty, Again. Regents v. Superior Court — Goldberg & Zipursky

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Post by John C. P. Goldberg & Benjamin C. Zipursky

The California Supreme Court has an iconic status in American tort law. It is, after all, the Court that gave us strict products liability. It also led the charge to liberate negligence law from no-duty rules that barred various claims against negligent drivers and landowners.

Perhaps the best known of the Court’s duty decisions is Tarasoff v. Board of Regents (1976). A Berkeley graduate student (Poddar) became obsessed with a young woman (Tarasoff). Eventually, Poddar confronted Tarasoff at her parents’ home and stabbed her to death. The Court held that, although Tarasoff lived off campus and was not an enrolled student, because Poddar had talked about killing Tarasoff with his therapists, they were obligated to take steps to protect her. Like most other Torts professors, we teach Tarasoff as emblematic of the California Court’s then-progressive, pro-plaintiff disposition, and its role as a trailblazer for courts around the country.

Imagine our surprise, then, to read a recent California Court of Appeal decision ruling that, so far as California law is concerned, universities owe no duty to their students to protect them against attacks by other students. More jarring still was that this case—Regents v. Superior Court—featured both another horrific knife attack and the same defendant as in Tarasoff: the Regents of the University of California. As Justice Perluss argued in a persuasive dissent, the Court of Appeal’s holding that UCLA owed no duty of care to its student is untenable. The core issue in the case is not duty, but breach (and perhaps causation).  Breach, of course, is a question for the jury.  

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The History Problem –Sandra Sperino

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Post by Sandra Sperino, Associate Dean of Faculty and Professor of Law, University of Cincinnati College of Law.

The history of the discrimination statutes also presents a problem for interpreting them through the lens of tort law.  As mentioned in the last post, the Supreme Court has created different ways of thinking about discrimination claims.  Courts often categorize discrimination cases as falling into one of several different frameworks:  (1) individual, intentional discrimination claims; (2) pattern or practice claims; (3) harassment; and (4) disparate impact.

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Legal Remedies and Laches in a Statutory Regime: The Federal Circuit Distinguishes Patent from Copyright — John Golden

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Post by John M. Golden

What place do distinctions between law and equity have in modern law?  In the United States, answering this question can be complicated by not only a twentieth-century merger of law and equity under the Federal Rules of Civil Procedure, but also the frequent embedding of common-law principles within a substantive statutory regime.  The subject has attracted scholarly attention.  A forthcoming article by Sam Bray of the UCLA School of Law argues that the U.S. Supreme Court has properly emphasized distinctions between legal and equitable remedies in modern U.S. law.

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Title VII Does Not Look Like a Tort – Sandra Sperino

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Post by Sandra Sperino, Associate Dean of Faculty and Professor of Law, University of Cincinnati College of Law.

There are several reasons why it is hard to use tort law to define discrimination concepts.  The first reason is a textual one.  Any judge who espouses a strongly textual philosophy should have a hard time claiming that tort law specifically defines terms in Title VII.  Why?  Title VII is not structured like a typical common law tort.  More importantly, Title VII does not use the language of common law torts.

Most torts are structured in a particular way.  They have a common set of elements that define the primary contours of the cause of action.  For example, negligence is typically defined with four elements: breach of a duty causing injury. 

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