Samuel Beswick

The Liability of Judges for Wrongful Imprisonment

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By Samuel Beswick, Assistant Professor of Law, Peter A. Allard School of Law, The University of British Columbia. Last month, the United States Sixth Circuit Court of Appeals and the Federal Court of Australia each gave judgments on lawsuits against sitting judges for abusing their contempt-of-court power. The US case arose after an Ohio Municipal … Read more

Retroactive Rights of Action

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By Samuel Beswick, Assistant Professor, Peter A. Allard School of Law, The University of British Columbia I recently suggested on Balkinization that a storm seems to be brewing concerning the place of non-retroactivity doctrine (also called the doctrine of “prospective overruling”) in federal law. Non-retroactivity doctrine attempts to define the temporal scope of novel judgments … Read more

Canada’s Second Biennial Obligations Conference

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By Samuel Beswick, Frank Knox Memorial Fellow, SJD candidate, Harvard Law School On May 10 and 11, the University of New Brunswick Faculty of Law hosted the second biennial Canadian Law of Obligations (CLO) conference. Legal scholars from across Canada, as well as the United States and England, presented their works-in-progress on the theme of Obligations … Read more

Don’t Talk about Him: Sir Cliff Richard OBE v. BBC

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Post by Samuel Beswick.

Sir Cliff Richard is the latest celebrity to win substantial damages for invasion of privacy by a news organization in England. In the summer of 2014, the BBC broke the story that Sir Cliff was under Police investigation in relation to an alleged historic sex offence. It broadcast with “colour and sensationalism” [¶55] the police search of his Berkshire home: dispatching reporters and a helicopter to the area, as well as to Sir Cliff’s other known residences in Europe. The singer was holidaying in Portugal with friends at the time. The Police dropped the investigation 22 months later. They brought no charges.

Sir Cliff sued the Police (who settled for £700,000 and a public apology) and the BBC. On July 18, the High Court of England and Wales found against the BBC and ordered payment of general, aggravated and special damages: Richard v. British Broadcasting Corporation [2018] EWHC 1837 (Ch).

Earlier this year my co-author and I made the argument that English privacy law is heading down a divergent path from other common law countries by embracing a framework that in practice favors privacy interests above conventional freedoms of speech and of the press. Mr Justice Mann’s judgment would appear to be a further illustration of our thesis. 

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HLS Private Law Workshop: Rebecca Williams, The ECJ’s ‘Remedies Jurisprudence’ and the Role of Domestic Courts

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Samuel Beswick, Frank Knox Memorial Fellow, SJD candidate, Harvard Law School One of the major catalysts behind the resurgence in England and Wales of the law of unjust enrichment has been the influence of fundamental rights jurisprudence of the European Union. Where a member state levies charges on persons contrary to EU law (such as … Read more

Reflections on Obligations in Canada

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Post by Samuel Beswick

On May 5–6, the Peter A. Allard School of Law (University of British Columbia) hosted the inaugural Canadian Law of Obligations conference with the theme of Innovations, Innovators, and the Next 20 Years. The conference was held in honor of Professor Joost Blom QC to mark his retirement from a 45-year career at UBC’s Law School.

Justice Russell Brown of the Supreme Court of Canada, a UBC alumnus and unabashed “tortaholic,” opened the conference with praise of Canada’s legal heritage and the methodological constraints of stare decisis, analogical reasoning, and reasons-based persuasion that are both empowering and humbling features of common law adjudication.

The conference drew scholars from across North America as well as from England and Wales, Hong Kong, Israel, and South Africa. Across the nine panels and four keynote addresses, presentation topics traversed problems concerning public authority liability, the evolving torts of privacy and defamation, remedies for historic wrongs and abolition of historic rights, private law theory, empirical research and causation theory, trusts, and the implications of the good faith principle in contract law (the “tortification of contract,” as Professor Blom put it).

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Harvard Law School’s Private Law Workshop: Mischkowski, Stone & Stremitzer, Promises, Expectations, and Social Cooperation

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Post by Samuel Beswick, Frank Knox Memorial Fellow, SJD candidate, Harvard Law School

At last Wednesday’s Private Law Workshop, Rebecca Stone presented new experimental evidence on whether, and under what conditions, people regard promises as generating obligations to keep them. Based on a study of some 780 subjects, Mischkowski, Stone and Stremitzer find that people regard the issuance of a promise in and of itself, and the fact of another’s reliance on a promise, as each carrying binding force. They further find an additive effect when the two conditions co-exist—i.e., when a promise is relied upon.

The authors set up a simple vignette study: imagine you are a prospective buyer and have told a seller that you will purchase a product from them for $100 when you get back into town. Depending on the version of the vignette (six versions were randomly assigned to the pool of subjects), you either promised to make the purchase or you stated an intention to buy the product but disavowed any promise to do so. You (the buyer) are told that the seller—in the spirit of Monty Python’s shopkeeper who is alternately rude and polite—either believed your promise, did not believe your promise, or was not sure (again, depending on the version of the vignette, randomly assigned). Finally, you are told that, prior to your return you happen to learn that another seller is prepared to sell you the same product for $85. Subjects are then asked whether they will buy from the original seller or instead buy from the other seller at the lower price.

Mischkowski, Stone and Stremitzer find evidence of three motivations for people’s decisions to keep their promises. First, regardless of whether they made or disavowed a promise to the original seller, subjects who were told that the seller had credited their assertions that they were planning to buy from the seller were more inclined to buy from the original seller than subjects who were told that the seller had not credited or had doubted their assertions (an expectations per se effect). Second, subjects who made a promise, as opposed to those who disavowed any promise, were more inclined to buy from the original seller regardless of what they were later told about the seller’s expectations (a promising per se effect). Third, subjects were most inclined to keep their promises when they had promised to purchase from the original seller and when they were told that the seller was expecting them to purchase the product (an interaction effect).

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Restitution and Unjust Enrichment Discussion Group — Samuel Beswick

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Post by Samuel Beswick, Frank Knox Memorial Fellow, SJD candidate, Harvard Law School

Private law theory is enjoying a revival in Cambridge, M.A. Alongside the HLS Private Law Workshop, the Project on the Foundations of Private Law and the Law and Philosophy Society, last Thursday saw the launch of the Restitution and Unjust Enrichment Discussion Group at Harvard. The RUED Group brings together scholars and students in the Boston area who share an interest in the law of unjust enrichment to meet and discuss topical developments in the field.s

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Harvard Law School’s Private Law Workshop: John C. Harrison, Immunity Rules

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Post by Samuel Beswick, Frank Knox Memorial Fellow, SJD candidate, Harvard Law School

In the third of our trilogy of sessions on Hohfeld, Professor Harrison this week presented to the HLS Private Law Workshop a view of Calabresi and Melamed’s famous Cathedral article through a Hohfeldian lens. Calabresi and Melamed organized legal entitlements into three types: those protected by property rules, those protected by liability rules, and inalienable entitlements. An entitlement is protected by a liability rule when, if it is interfered with, the law requires only that the defendant pay an objectively determined value for it (generally in the form of compensatory damages).

Liability rules, Harrison contends, are “a false category.” Calabresi and Melamed had taken accident law from tort and eminent domain from the law of property, and grouped the two as examples of “instances in which society uses liability rules.” But their typology obscured the analytically distinct nature of these categories in two ways: by conflating rules about right/duty and rules about power/liability; and by conflating substantive law and remedies.

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Harvard Law School’s Private Law Workshop: Hanoch Dagan and Michael Heller, The Choice Theory of Contracts

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Post by Samuel Beswick, Frank Knox Memorial Fellow, SJD candidate, Harvard Law School

Let’s put freedom back into “freedom of contract.” That’s the ambition Professors Hanoch Dagan and Michael Heller set out in their forthcoming book, The Choice Theory of Contracts, excerpts of which the authors presented at this week’s HLS Private Law Workshop.

Dagan and Heller contend that contract law’s ultimate value is, and ought to be, enhancing individual autonomy. They say that only a “choice theory” of contracts facilitates such autonomy: only when contract law offers a sufficient array of contract “types” will individuals be free meaningfully to author their own destinies. The explication of this liberal theory entails engaging with, and unseating dogma on, two fundamental questions: what is contract? And what is freedom?

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Faulty Facades and Product Liability — Samuel Beswick

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Post by Samuel Beswick, Frank Knox Memorial Fellow, SJD candidate, Harvard Law School

* At the outset I should disclose that I had a hand in drafting the plaintiffs’ claim as a solicitor at Meredith Connell, New Zealand, in 2012/13.

Although the paradigm case of a tort suit against a product manufacturer involves a claim of personal injury caused by the manufacturer’s allegedly defective product, there is a wealth of litigation concerning products whose defects do not pose a risk of personal injury. For example, currently progressing through the District Court of Minnesota is a class-action product liability lawsuit, which consolidates claims arising in eight states against James Hardie Building Products Inc. in respect of its allegedly defective Hardiplank cladding product. The plaintiffs contend that Hardiplank fails prematurely by allowing moisture ingress, which causes damage to underlying building structures and adjoining property. Their claims sound in negligence, breach of express and implied warranties, and breach of consumer protection legislation. The plaintiffs might find some reassurance in last Friday’s decision of the Supreme Court of New Zealand: Carter Holt Harvey Limited v. Minister of Education [2016] NZSC 95. 

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