In September, Frank and Bernice J. Greenberg Professor of Law Omri Ben-Shahar and Fischel-Neil Visiting Professor of Law Ariel Porat organized a conference intended to reevaluate the role of fault in contract law. Speakers included Chicago faculty Saul Levmore, Eric Posner, Richard Epstein and Judge Richard Posner, along with experts in contract law from around the world. Subscribers to our Faculty Podcast may have already heard Judge Posner’s “Let Us Never Blame a Contract Breaker,” and audio and video of the entire conference is now available on the conference website. … [Here is] Professor Ben-Shahar’s introduction to the conference …
The papers from the conference will be published in the June 2009 issue of the Michigan Law Review, and an expanded volume collection will be published later by Cambridge University Press. In the meantime, the abstracts are on the Michigan Law Review site, and here are some of the drafts I’ve been able to find online, mostly (though not exclusively) from SSRN:
Eric Posner (Chicago) Fault In Contract Lawhere, here Roy Kreitner (Tel Aviv) Fault at the Contract-Tort Interfacehere (pdf) Ariel Porat (Tel Aviv) A Comparative Fault Defense in Contract Law here Saul Levmore (Chicago) Stipulated Damages, Super-Strict Liability, and the Real Rule of Contract Remedieshere (pdf) Richard Craswell (Stanford) When is Willful Breach ‘Willful’?here Oren Bar-Gill (NYU) & Omri Ben-Shahar (Chicago) An Information-Based Theory of Willful Breachhere Peter Siegelman (Connecticut) & Steven Thel (Fordham) Willfulness versus Expectation: A Promisor-Based Defense of Willful Breach Doctrine here, here (pdf), video Stephan Grundmann (Humboldt-Berlin) The Fault Principle as the Chameleon of Contract Law: A Market Function Approachhere (pdf) Seana Shiffrin (UCLA) Why Breach of Contract May Be Immoralhere (pdf) Richard Epstein (Chicago) The Many Different Faces of Fault in Contract Law: Or How to Do Economics Right, without Really Tryinghere George Cohen (Virginia) The Fault that Lies Within Our Contract Lawhere Robert Scott (Columbia) In (Partial) Defense of Strict Liability in Contracthere presented and discussed by Fabrizio Cafaggi (European University Institute) Hon Richard Posner (Chicago) Let Us Never Blame a Contract Breakerhere (pdf)
In the 1988 film The Accused [trailer here], a young woman named Sarah Tobias is gang raped on a pinball machine by three men while a crowded bar watches. The rapists cut a deal with the prosecutor. Sarah’s outrage at the deal convinces the assistant district attorney to prosecute members of the crowd that cheered on and encouraged the rape. This film shows how Sarah Tobias [played by Jodie Foster in an oscar-winning role], a woman with little means and less experience, intuits that according to the law rape victims are incredible witnesses to their own victimization. The film goes on to critique what the right kind of witness would be. This article explains how the film The Accused is therefore about the relationship between witnessing and testimony, between seeing and the representation of that which was seen. The article elaborates the relationship between the power and responsibility of being a witness in law – one who sees and credibly attests to the truth of her vision – as well as it unpacks the significance of bearing witness to film – what can we know from watching movies.
Three fundamental concepts underlie the principles that should govern unexpected-circumstances cases. (1) A contract consists not only of the writing in which it is partly embodied, but also includes, among other things, certain kinds of tacit assumptions. (2) These assumptions may be either event-centered or magnitude-centered. (3) The problems presented by unexpected-circumstances cases should be viewed in significant part through a remedial lens. The principles that rest on these concepts can be broadly summarized as follows. A shared nonevaluative tacit assumption that a given circumstance will persist, occur, or not occur during the contract time should provide a basis for judicial relief where the assumption would have affected the promisor’s obligations had it been made explicit. If the promisor was neither at fault for the occurrence of the unexpected circumstance, nor in control of the conditions that led to the occurrence, she should not be liable for expectation damages. The promisor should, however, be liable for restitutionary damages, because it would be unjust to allow the promisor to both be excused from performance and retain any benefits that she received under the contract. Alternatively, the promisor should be liable for reliance damages where she is at fault for the creation of the unexpected circumstance, but the fault is minor; where the promisor is in control of the conditions that led to the occurrence of the unexpected circumstances; or where an objective of the contract was to reserve for the promisor the promisee’s time, labor, or productive capacity. A seller should also be entitled to judicial relief if as a result of a dramatic and unexpected rise in her costs, performance would result in a financial loss that is significantly greater than the risk of loss that the parties would reasonably have expected that the seller had undertaken. If, under such circumstances, the market value of the contracted-for commodity has risen in tandem with the seller’s costs, the buyer should be entitled to the profit he would have made if a reasonably foreseeable increase in the seller’s cost of performance, and a corresponding increase in the market value of the commodity, had occurred. In appropriate cases, courts should take into account gains and losses to both parties that proximately resulted from, or were made possible by, the occurrence of the unexpected circumstance.
One of the many things I like about this piece is that the analysis begins with Krell v Henry [1903] 2 KB 740 (pdf | wikipedia | Limerick), a case which is still relied upon in the superior courts in Ireland, England, Canada, Australia and New Zealand.
The European Court of Justice has given its decision today in the Irish Government challenge to the Data Retention Directive – [Case C-301/06] Ireland v. Parliament and Council (Press Release | Judgment). Unsurprisingly (in light of the Advocate General’s Opinion) it has held that the directive was properly adopted as an internal market measure (by qualified majority voting) rather than as a criminal matter (requiring unanimity). Where does this leave us and our case?
While it’s a pity to see the Directive upheld, the Government’s challenge was a very narrow one, dealing only with the essentially technical matter of the legal basis for the Directive. The Government didn’t raise and the ECJ wasn’t asked to decide on the fundamental rights issues. Indeed it expressly stated:
The Court notes at the outset that the action brought by Ireland relates solely to the choice of legal basis and not to any possible infringement by the directive of fundamental rights resulting from interference with the exercise of the right to privacy.
Consequently, the decision doesn’t affect the core of our challenge to the Directive, which will still go ahead on the basis that it infringes the rights to privacy and freedom of expression. At the moment we’re waiting on a decision from the High Court on our application to refer these issues to the ECJ – we’re confident that when these issues reach the ECJ that they will decide in our favour.
Safer Internet Day takes place each year in February to promote safer and more responsible use of internet and mobile phone technologies; this year, it’s today, 10 February (last year’s is blogged here). An excellent contribution to this issue is the ongoing EU Kids Online project at the LSE, funded by the EU’s Safer Internet plus Programme.
The morning plenary session, on Teaching Experiences in Legal Education, will be chaired by UCD School of Law’s new Dean, Prof John Jackson, and the speakers will be Prof Avrom Sherr (Institute of Advanced Legal Studies), Dr Marie-Luce Paris-Dobozy (University College Dublin) and Ms Raphael King (McCann Fitzgerald).
The afternoon plenary session, on International and European Perspectives in Legal Education, will be chaired by Prof Blanaid Clarke (University College Dublin), and the speakers will be Dr Attracta Halpin (Registrar, National University of Ireland) and Prof Frans Vanistendael (Katholieje Universiteit Leuven).
Between the plenary sessions, there will be parallel sessions on Experiential Learning, Assessment Techniques & Feedback, Clinical Legal Education, Teaching Foreign Legal Systems and (the one I’m most looking forward to) Blogs, Podcasts, Social Networks, Wikis and other social media.
Kudos to Prof Blanaid Clarke and Dr Marie-Luce Paris-Dobozy for all their hard work in putting this exciting programme together. There is no conference fee, but you must make a booking to reserve a place. So, if you’re interested, please send an email for the booking form.
The Supreme Court upheld a High Court order dismissing an application from the Motor Insurers Board (MIB) seeking to have proceedings against it separated from proceedings against another plaintiff, both of which arose out of the same accident.
In an appeal against a Circuit Court order that 80 per cent of the value of the family home be allocated to the wife in a judicial separation, and 20 per cent to the husband, the High Court ordered that the allocation be 60 per cent to the wife and 40 per cent to the husband.
Verbal statements allegedly made by the applicant while held on the ground by members of An Garda Síochána during an operation should not have been admitted in evidence. Therefore the applicants appeal against conviction for possession of a firearm was quashed. A retrial was not ordered.
It seems that sales of paper law reviews and journals are declining. For example, the Harvard Law Review had 8,760 subscribers for its 1979/1980 volume, but only 2,610 for its 2007/2008 volume. Now, via Volokh and Ambrogi, I learn of the appearance of the Journal of Legal Analysis, published by Harvard University Press.
It is a welcome departure in many directions. It is faculty edited, rather than student-edited; the latter is the norm in the US, but is regarded with some skepticism in the outside world. It is peer reviewed, with judgments being made on the quality of a piece not by the student editors but by experts in the relevant fields. It requires exclusive submission, which is the norm outside the US, but very different to the games in which authors and student-editors currently indulge to barter better placements. It is a general journal, publishing articles from all disciplinary perspectives and in all styles, rather than being confined to a specific legal field or theoretical approach. And, in an excellent development which will surely come to be seen as a some kind of apostasy, it has eschewed the Bluebook for a very minimalist house-style. Finally, it is open, free, digital: the articles will be published on a bespoke open-source platform and made fully available under a Creative Commons licence [specifically Attribution-Noncommercial-Share Alike 3.0 Unported] as soon as they are ready for publication. Read the rest of this entry »
Posted elsewhere (some of my recent posterous posts)
My posterous site is a companion to this blog: anything that catches my eye on the wild wild web that's too long for twitter but too short for a normal post here will (probably - eventually) end up over there.
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