Posted by: lscholz | 1st Feb, 2017

Journal of Tort Law Invites Submissions

The Journal of Tort Law is the only peer-reviewed journal devoted to tort law in the United States. It offers several advantages to those submitting scholarship. First, your work will be reviewed by peers. This is particularly important for more technical pieces. Second, there is no submission cycle. Articles can be submitted at any time. Third, the Journal routinely publishes high-quality articles. The two issues to be published in 2017 are great examples. Volume 10, Issue 1 will publish articles from the Torts and Compensation Systems Section’s panel at the AALS Annual Meeting. Covering “Gun Regulation and Private Law,” authors include Leslie Kendrick (UVa), Adam Scales (Rutgers), and Steve Sugarman (Berkeley). The issue will also contain an article by Greg Keating (USC). Volume 10, Issue 2 will feature a symposium on the Restatement of the Law Third: Intentional Torts to Persons. Reporters Ken Simons (UC Irvine) and Jonathan Cardi (Wake Forest) will respond to commentary from Anita Bernstein (Brooklyn), Ellie Bublick (Arizona), Martha Chamallas (Ohio State), Mark Geistfeld (NYU), Mike Green & Bill Powers (Wake Forest/Texas), Nancy Moore (Boston University), Tony Sebok (Cardozo), Cathy Sharkey (NYU), Steve Sugarman (Berkeley), Richard Wright (Chicago-Kent), and Ben Zipursky (Fordham).

Submission information is available here. The Journal has adopted a policy that authors will have either a decision or an update within 45 days of submission.

Posted by: lscholz | 18th Jan, 2017

Markets, Ethics, and the Law Postdoctoral Fellowships

The Edmond J. Safra Center for Ethics at Tel Aviv University is accepting applications for its 2017-18 postdoctoral fellowship program. The Center offers grants to outstanding researchers who study the ethical, moral and political aspects of markets, both local and global from all disciplines and fields, including economics, social sciences, business, the humanities and the law. More details here.

The Project on the Foundations of Private Law at Harvard Law School is seeking applicants for the Qualcomm Fellowship in Private Law and Intellectual Property.

The Qualcomm Fellowship is a two-year, residential postdoctoral program specifically designed to identify, cultivate, and promote promising scholars early in their careers with a primary interest in intellectual property and its connection to one or more of property, contracts, torts, commercial law, unjust enrichment, restitution, equity, and remedies. Fellows have been selected from among recent graduates, young academics, and mid-career practitioners who are committed to pursuing publishable research likely to make a significant contribution to private law scholarship.

Fellows devote their full time to scholarly activities in furtherance of their individual research agendas. In addition, fellows contribute to the intellectual life of the Project and the Harvard Law School community through mentoring students, presenting their research in and attending faculty workshops and seminars, helping to organize and participating in Center events, and blogging.

More information and application details can be found here.

Posted by: lscholz | 10th Jan, 2017

Apply to be a Private Law Fellow at the Project

The Project on the Foundations of Private Law at Harvard Law School is seeking applicants for the Postdoctoral Fellowship in Private Law.

The Fellowship is a two-year, residential postdoctoral program specifically designed to identify, cultivate, and promote promising scholars early in their careers with a primary interest in private law. Private law embraces traditional common law subjects (property, contracts, and torts), as well as adjacent statutory areas such as intellectual property and commercial law. It also includes resurgent areas, such as unjust enrichment, restitution, equity, and remedies. Fellows have been selected from among recent graduates, young academics, and mid-career practitioners who are committed to pursuing publishable research likely to make a significant contribution to private law scholarship.

Fellows devote their full time to scholarly activities in furtherance of their individual research agendas. In addition, fellows contribute to the intellectual life of the Project and the Harvard Law School community through mentoring students, presenting their research in and attending faculty workshops and seminars, helping to organize and participating in Center events and projects, and blogging.

More information and application details can be found here.

Post by Patrick Goold

The Project on the Foundations of Private Law at Harvard Law School and the Intellectual Property Law Program at The George Washington University Law School invite you to attend Intellectual Property, Private Law, and the Supreme Court, a day-long conference in Washington, DC, on March 10.

In the last decade, the Supreme Court of the United States has made it clear that private law, both substantive and remedial, is relevant to intellectual property. The Justices have repeatedly observed that IP law is not disconnected from the larger legal system, and has increasingly applied the principles of the laws of property, tort, equity, and remedies in IP cases. In cases that include ABC v. Aereo, Akamai v. Limelight, Commil v. Cisco, eBay v. MercExchange, Halo v. Pulse, and Petrella v. MGM, the Court’s opinions have relied on private law doctrines to help address contemporary IP problems. Organized by the Project on the Foundations of Private Law at Harvard Law School and The George Washington University Law School, the conference brings together scholars, policymakers, and practitioners to analyze how the Supreme Court is using private law in its IP decisions, and to anticipate what the future holds for the role of private law in the development of IP jurisprudence. Sponsorship is provided by Qualcomm Inc. and Intel Corp.

Click here to RSVP.

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Post by Patrick Goold

Sir Edward Coke’s Institutes of the Lawes of England, first published in 1628, rarely influences the direction of modern U.S. patent law. But that might be about to change. This December, the Supreme Court of the United States granted certiorari in the case of Impression Products, Inc. v. Lexmark International, Inc., Supreme Court Docket No. 15-1189, concerning the scope of the patent exhaustion doctrine. The case will interest readers of this blog because it highlights the conceptual and doctrinal relationship between IP exhaustion and common law rules regarding restraints on alienation.

The case involves the ongoing battle over refurbished printer toner cartridges. Lexmark International makes printer toner cartridges, over which it owns a number of patents. These cartridges fall into two types: “Regular Cartridges” are sold at full price; while “Return Program Cartridges” are sold at a discount but come with a “single-use/no-resale” restriction, meaning the buyer may neither reuse nor resell the cartridge after the toner has run out. Lexmark sells these cartridges both domestically in the U.S. and abroad. In 2014, Lexmark sued Impression Products for patent infringement. Impression Products had previously: (1) bought domestically-sold Return Program Cartridges, modified by third parties to allow refilling, and resold them in the U.S.; and (2) imported and resold both Regular and Return Program Cartridges from foreign markets. Lexmark maintained both of these actions infringed their U.S. patent rights under § 271 of the Patent Act. Impression argued that both of these acts were non-infringing due to the Patent Exhaustion doctrine, which holds that “the initial authorized sale of a patented item terminates all patent rights to that item.” Quanta Computer, Inc. v. LG Electronics, Inc., 553 U.S. 617, 625 (2008). John Golden has discussed the case in a prior New Private Law Blog post.

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Post by Patrick Goold

Caveat emptor, or buyer beware, was the traditional principle of Anglo-American contract law. Today, however, many common law jurisdictions require the seller to disclose material information to the buyer prior to sale. Nevertheless, the duty to disclose is still subject to debate. Should the law obligate the seller to disclose pertinent information (a mandatory disclosure rule)? Or should disclosure be at the discretion of the seller (a voluntary disclosure rule)? In Disclosure Rules in Contract Law, Oren Bar-Gill and Ariel Porat study how mandatory and voluntary disclosure rules affect sellers’ incentives to invest in pre-sale investigation of goods. Speaking at the final installment of this year’s Private Law Workshop, Oren Bar-Gill explained their conclusion: that mandatory disclosure rules typically, but not always, provide sellers with efficient incentives to acquire socially valuable information regarding the asset.  

Imagine the following example. Having lived in a house for 10 years, the owner suspects there is water beneath the house that might damage its foundations. Before selling the property, the owner could hire a surveyor to investigate whether underground water exists. Whether hiring a surveyor is efficient depends on the value of the information investigation reveals relative to the cost of acquiring it, i.e. hiring the surveyor.

In 1994, Steven Shavell studied how mandatory (MD) and voluntary disclosure (VD) rules affected the incentives of sellers to undertake such investigations. Shavell found that MD rules create efficient incentives, while VD rules do not. If the owner knows that any information the investigation reveals must be disclosed, then he will only invest in the investigation if the expected increase in value to the asset outweighs the cost of the investigation. Conversely, voluntary disclosure rules cause owners to invest too heavily in information-acquisition, on the grounds that any favorable information can be used to demand a higher price, while unfavorable information is simply ignored.

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Posted by: pgoold | 30th Nov, 2016

On Plain Meaning and Pacific Gas — Greg Klass

Post by Greg Klass

Judge Traynor’s opinion in Pacific Gas & Electric v. Thomas Drayage & Rigging is a bête noire of textualist judges and contracts scholars. Judge Kozinski’s assessment is typical:

Pacific Gas casts a long shadow of uncertainty over all transactions negotiated and executed under the law of California. As this case illustrates, even when the transaction is very sizeable, even if it involves only sophisticated parties, even if it was negotiated with the aid of counsel, even if it results in contract language that is devoid of ambiguity, costly and protracted litigation cannot be avoided if one party has a strong enough motive for challenging the contract.

Trident Center v. Connecticut Gen. Life Ins. Co., 847 F.2d 564, 569 (9th Cir. 1988).

The objection is that permitting extrinsic evidence significantly increases the probability that a court will find ambiguity. The facts in Pacific Gas appear to illustrate the worry. Whereas the scope of the indemnification clause at issue was clear, covering “all loss, damage, expense and liability resulting from * * * injury to property, arising out of or in any way connected with the performance of this contract,” the defendant wanted to introduce extrinsic evidence that in fact the parties meant it to cover only third-party losses. Permitting that evidence in created ambiguity where none existed before.

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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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Posted by: pgoold | 17th Nov, 2016

North American Workshop on Private Law Theory IV

Post by Patrick Goold

Earlier this month, Fordham University School of Law hosted the fourth annual North American Workshop on Private Law Theory (NAWPLT). This edition of NAWPLT—a yearly conference that gathers U.S and Canadian private law scholars to discuss works-in-progress selected by a steering committee—was organized by Fordham Professors Aditi Bagchi and Ben Zipursky.

In twentieth century legal theory, few issues have received more attention than the question: “What is Property?” Eric Claeys, in Property as an Institutional Artifact, defends a revisionist view. To Claeys, property is not merely a form (a bundle of jural relations), but has an essential substantive content: exclusive use. A property right, on this view, confers on one individual the exclusive authority to benefit from or manage a resource. In a related vein, James Stern’s paper, titled Intellectual Property and the Myth of Nonrivalry, argued against the prevailing view that intangible goods are “nonrivalrous.” Insofar as people have incompatible desires about how intangible goods are to be used, they resemble tangible goods, and hence there can be a need for a legal architecture that delegates to one individual the exclusive right to decide how such goods are used.  

In Legal Positivism as an Idea About What Morality Might Be, Martin Stone considered through the lens of tort law another ‘eternal’ question: the relation of law and morality. Taking issue with the view that the distinctiveness of legal positivism resides in its account of the nature of law, Stone maintains that it instead resides in a particular instrumental understanding of the relation of morality to law. In Retaliatory RICO and the Puzzle of Fraudulent Claiming, meanwhile, Nora Engstrom discussed a new technique repeat-player defendants are using to fight fraudulent claims: the Racketeer Influenced and Corrupt Organizations Act (RICO). When it was signed into law in 1970, Congress probably did not envision that RICO’s provisions on bribery, fraud, and obstruction of justice would allow corporate defendants to retaliate against plaintiffs bringing baseless claims to court. Questions remain regarding whether such retaliatory RICO actions can be exercised in a sensible and even-handed manner.

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