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.

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

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.

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

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.

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Private Law is Happening — John Goldberg

Post by: John Goldberg

Kudos to NPL blogger Daniel Markovits for assembling and hosting last week an excellent two-day conference at Yale Law School as the capstone to his Spring ’15 Private Law Seminar. (It is surely a good sign for the field that Harvard and Yale now both have established programs on private law.) 

Here was the line-up of panelists and readings, which encompassed an appropriately diverse yet overlapping set of topics and methodologies, and gave rise to excellent discussions.

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

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.

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Tort Law ABCs … — John Goldberg

Post by John Goldberg

In part what it means to take private law seriously is to be mindful of the proper application of basic legal concepts. In that spirit, I will from time to time point out instances of what I take to be sloppy legal analysis. Apologies to those who end up as blog fodder. Lord knows everyone makes mistakes.

Today’s example comes from a plain-vanilla, slip-and-fall case, Bongiorno v. Americorp, Inc., 159 So.3d 1027 (Fla. Ct. App. 2015). The plaintiff slipped while in a restroom in the office building in which she worked. She sued the owner on a premises liability claim.

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Waiver of Class Actions — Keith Hylton

Post by Keith Hylton

Waiving or agreeing pre-dispute to arbitrate a potential legal claim has always been a controversial topic in tort law. It’s especially controversial in the class action setting, since the Supreme Court’s decision in AT& T v. Concepcion, 563 U.S. 321 (2011) (holding that the Federal Arbitration Act preempted California’s application of unconscionability doctrine as a bar to the enforcement of an agreement prohibiting class-wide arbitration). In a piece forthcoming in the Supreme Court Economic Review I examine the question whether class action waivers should be enforced. Here is the SSRN version.

To answer this question, it is helpful to start by asking whether society’s welfare can ever be enhanced by allowing pre-dispute litigation waivers. The answer is yes. Society benefits from the threat of litigation, because the threat induces potential tortfeasors to take care. But that benefit is not ever-increasing. In particular, there is a cost associated with it, the cost of litigation. If the value of the “deterrence benefit” is less than the cost of litigation, then the threat of litigation actually reduces society’s welfare (after netting out the litigation cost). A litigation waiver may be socially desirable in this case.

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