yarbel

A Frolic Of His Own — Anthony J. Sebok

by

Post by Anthony J. Sebok

As I noted in my last post, some common law jurisdictions are still guided by an anachronistic hostility to the sale of lawsuits to strangers.  But some, like Wisconsin, are much more liberal.  For a proponent of the free alienability of litigation, liberal regimes pose a special challenge, which has to do with limits.  When should the sale of lawsuits be limited?  How should the rules governing limitations be designed?

Recently Judge Richard Posner decided a case where he found, under Wisconsin law, a reason to set aside the sale of a lawsuit.  The facts led him to quote Karl Marx and William Gaddis, and the case, Carhart v. Carhart-Halaska Int’l, LLC, 2015 U.S. App. LEXIS 9497 (7th Cir., June 8, 2015), is worth reading for Posner’s sly commentary on what appears to be at first just another example of lawyering that is, as the British say, too clever by half.

Read more

Common Law in the Interpretation of Statutes: Akamai v. Limelight at the Federal Circuit — John Golden

by

Post by John M. Golden

In patent law, networked technologies have brought to the fore difficult questions about liability in situations involving so-called “divided infringement.”  In a typical such situation, multiple parties contribute to the exploitation of a patented method, but no party performs all steps of the method.  Notably for the purposes of this blog, questions about whether anyone is liable for infringement in such situations have led judges at both the U.S. Supreme Court and the U.S. Court of Appeals for the Federal Circuit to direct attention to common law standards for joint tortfeasor liability.  In the end, more straightforward issues of statutory interpretation might dominate concerns about common law principles.  Cf. John F. Duffy & Richard Hynes, Statutory Domain and the Commercial Law of Intellectual Property, 102 Va. L. Rev. (forthcoming) (contending that “modern commentators are wrong in asserting that [patent and copyright] exhaustion doctrine evolved from common-law decisionmaking” as opposed to statutory interpretation) .  Nonetheless, the current debate highlights the extent to which modern statutory regimes can trigger reference to (and opportunities for academic guidance on) background principles of common law.

Read more

Waiver and Arbitration of Tort Rights (continued) — Keith Hylton

by

Post by Keith Hylton

In my last contribution to this blog, I discussed the different implications of waiving legal rights in standard one-on-one litigation and class action scenarios.  I noted predispute waivers can be socially desirable in both settings, but the danger of welfare-reducing waivers is greater in the class action scenario.

Let me take some time to elaborate here.  One of the basic results of the economic theory of litigation is that the private and social incentives to litigate diverge – this point was demonstrated in an article by Steve Shavell. In other words, an individual may have an incentive to file a tort claim in a setting where society’s welfare would be greater if litigation were prohibited.  This proposition does not depend on people being uninformed or suffering from various judgment biases; it holds when litigants are rational and fully informed.

Read more

The Analytic Jurisprudence of the New Private Law — Patrick Goold

by

Post by guest blogger Patrick Goold

Backed by an impressive array of renowned legal scholars, and the subject of a Harvard Law Review symposium, the New Private Law (NPL) project has gripped the attention of jurists throughout the common law world. Yet, despite the attention this enterprise has quickly garnered, there is one curious aspect of the development that remains largely unexamined. That is, in challenging us to “understand private law” on its own terms, much of the NPL project falls within the boundaries of “analytic jurisprudence.” This focus on analytic questions is surprising because of the suspicion, and sometimes hostility, the American legal academy has traditionally shown towards this branch of legal scholarship. Therefore, in this post, I intend to demonstrate how analytic jurisprudence lies at the core of the NPL project and thereafter, to defend NPL’s reliance on analytic methods against some common critiques that will surely be presented sooner or later.

Read more

Copyright and Joint Authorship—Lingering Confusion and a Missed Opportunity — Shyam Balganesh

by

Post by Shyam Balganesh A few weeks ago, the Ninth Circuit, sitting en banc, decided the much-anticipated copyright case of Google v. Garcia. The case involved an actress, Cindy Lee Garcia, who was led to believe that she was performing for a film titled Desert Warrior. After her performance was recorded, the producer transformed her five-second … Read more

“Taking Turns”: Common Solution, Unusual Remedy — Dan Kelly

by

Post by Dan Kelly

To facilitate coordination and mitigate conflicts, a common solution in everyday life is the idea of taking turns.  If two siblings or children are fighting over a toy (say, a ball or doll), a parent or teacher may suggest taking turns.  If drivers are exiting a crowded parking lot after work, church, or a ballgame, the implicit norm is to take turns.  Yet, this strategy of taking turns has received relatively little attention in law and the social sciences.

In “Taking Turns” (forthcoming Florida State University Law Review), Ronen Perry (Haifa) and Tal Z. Zarsky (Haifa) examine turn taking from both a fairness and efficiency perspective.  Their lead example is from a trusts and estates case, In re McDowell, 345 N.Y.S. 2d 828 (Sur. Ct. N.Y. 1973):

Two siblings jointly inherit their late father’s rocking chair. The chair has principally sentimental and no real economic value; it cannot be physically divided between them, and selling it to distribute the proceeds will compensate neither for the sentimental loss. What, then, should become of the disputed property? In a self-confessed “strange” decision in the McDowell case, the Surrogate’s Court of New York ordered that the two siblings take possession of the chair alternately for six-month periods; and that when one passed away, the other would obtain exclusive possession.

Are there other examples of turn taking in law and legal institutions, particularly private law?  Given the prevalence of turn taking as an informal solution to coordination problems, why does the formal law not embrace taking turns more frequently when it comes to remedies? 

Read more

Should There be a Federal Policy on Arbitration? — Aditi Bagchi

by

Post by Aditi Bagchi

The Federal Arbitration Act can be read merely to protect arbitration clauses from hostile judges.  That is, it may merely require neutrality with respect to arbitration.  Alternatively, it can be understood, together with the slew of federal cases overturning allegedly ‘hostile’ state decisions, as affirmatively friendly to arbitration.

In the recent 7th Circuit decision, Andermann v. Sprint Spectrum L.P, Judge Posner takes the former view.  He observes that it is not clear that arbitration should be preferred, but more importantly, there is no reason to treat arbitration terms differently than other contract terms.  Whatever Posner’s ultimate view about the utility of arbitration, he appears more committed to a strong default of neutral enforcement of contract without reference to public policies that might favor or disfavor particular terms.  As long as parties formally agree on arbitration, arbitration carries the mantle of freedom of contract.

Read more

The Acrobatics of Usury — Yonathan Arbel

by

Post By Yonathan Arbel

Perhaps one of the most plastic of all private law rules is the prohibition on usury. Judges and religious scholars have been pirouetting around this issue more-or-less gracefully for thousands of years. A recent interesting case in this regard is Bisno v. Kahn, 225 Cal. App. 4th 1087, 170 Cal. Rptr. 3d 709 (2014).  This case raises a question that is rarely asked: can a judgment-creditor charge any amount in exchange for delaying the execution of a judgment?

Read more

Private Law Theory, Honor, and Related Norms — Andrew Gold

by

Post by: Andrew Gold Private law theorists usually adopt morality criteria when assessing the plausibility of a given theory.  (For helpful assessment of these criteria, see Stephen A. Smith, Contract Theory 13-24 (2004)).  That said, private law sometimes incorporates concepts that are hard to square with the standard morality-based pictures of private law.  Nathan Oman … Read more

The Supreme Court on Public v. Private Law – John Golden

by

Post by: John Golden

While we debate the nature of the distinction—or the lack thereof—between public and private law, perhaps we should take note that the U.S. Supreme Court has recently decided the issue.  Well, not by a long shot, of course, but in Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831 (2015), justices engaged in spirited debate over the extent to which the interpretation of patent claims should be viewed as more analogous to the interpretation of private “written instruments such as deeds and contracts” than to the interpretation of statutes.  Id. at 840.  The dissenters in Teva explicitly linked this question to a traditional distinction between “‘core’ private rights” and “‘public rights,’” id. at 848 n.2 (Thomas, J., dissenting).  The justices viewed these questions as significant for—if not decisive of—whether the U.S. Court of Appeals for the Federal Circuit was right in viewing patent claim construction as a question of law for which appellate review is uniformly de novo even when a lower court’s claim construction reflects underlying factual findings.  A seven-justice majority rejected the Federal Circuit’s position.  En route to this result, the majority and dissenters produced opinions with snippets that relate to potential ways of distinguishing between public and private law.

Read more

Interpretation in Omnicare v. Laborers District Council Construction Industry Pension Fund – Greg Klass

by

Post by Greg Klass

In this first post, I’d like to point readers to opinions in Omnicare v. Laborers District Council Construction Industry Pension Fund, 575 U.S. ___ (2015). Though a securities fraud case, the Omni opinions raise more general questions about the private law of deception.

The issue in Omni was whether a company could be held liable under 15 U.S.C. § 77k(a) for so-called statements of opinion, such as “We believe that our contract arrangements with other healthcare providers, our pharmaceutical suppliers and our pharmacy practices are in compliance with applicable federal and state laws.” Slip op. at 3. The Sixth Circuit had held that such statements were actionable if the company’s beliefs were “objectively false.” The Supreme Court reversed, based on the common law rule that a statement of belief is (in most cases) actionable only if the speaker does not actually hold the belief. It is not enough to show that the belief was false. A plaintiff must show that it was not actually held.

Read more