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Online | New Directions in Private Law Theory

11 November 2021–12 November 2021, 10:00 am–5:30 pm

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The SLS Annual Seminar for 2021

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About the Conference

The SLS Annual Seminar for 2021 - New Directions in Private Law Theory is to be hosted by the Faculty of Laws, UCL on Thursday 11 and Friday 12 November 2021

The conference will cover a wide range of topics in private law theory, exploring concepts employed both within and across recognised divisions of private law (contract, tort, unjust enrichment, and property) as well as the interplay between these divisions and other areas of law. The contributions come from a diverse and inclusive range of early career scholars who bring new perspectives to bear on issues arising in private law by drawing on philosophy and other disciplines in the humanities and social science.

To maximise the opportunities for discussion and feedback on the papers, all delegates are expected to pre-read the papers and speakers are restricted to a 10 minute slot for introducing their papers. A commentator will then speak for 5-10 minutes and general discussion will then follow.

Speakers include:

  • Leo Boonzaier (University of Cape Town)
  • Edit Deutch (KCL)
  • Martin Fischer (UCL)
  • Sarah Hamill (Trinity College Dublin)
  • Jeevan Hariharan (UCL)
  • Johanna Jacques (Durham)
  • Pablo Letelier Cibie (Universidad de Chile)
  • Timothy Liau (National University of Singapore)
  • Joaquín Reyes Barros (Universidad Finis Terrae)
  • Nicholas Sinanis (Monash)
  • Ohad Somech (Tel Aviv)
  • Beth Valentine (North Dakota)
  • Aness Kim Webster (Nottingham)
  • Sally Zhu (Sheffield)

The conference themes include:

  • Contract
  • Consent and Standing
  • Private Law / Public Law Interface
  • Property
  • Tort
  • Unjust Enrichment

The conference will close with a special session dedicated to the late John Gardner and his enduring commitment to supporting early career scholars and promoting the value of inclusivity in academic life. The session will explore the legacy of his contribution to private law theory.

This conference will be delivered online on Zoom.

This conference has been convened by Prof Charles Mitchell, Prof Prince Saprai, Dr Fabiana Bettini and Martin Fischer.

The programme
 Thursday 11 November
10:00Welcome and announcements
10:15Session 1 - Property

Johanna Jacques, Durham [Paper expected 31 October]
(Commentator: Sinéad Agnew)
Sally Zhu, Sheffield
(Commentator: Irit Samet)
Sarah Hamill, Trinity College Dublin
(Commentator: Ben McFarlane)

13:00Break
14:00Session 2 - Contract

Ohad Somech, Tel Aviv
(Commentator: Aditi Bagchi)
Joaquín Reyes Barros, Universidad Finis Terrae
(Commentator: Nick Sage)

15:30Break
16:00

Session 3 - Unjust Enrichment
Pablo Letelier, Universidad de Chile
(Commentator: Charlie Webb)
Martin Fischer, UCL
(Commentator: Aruna Nair)

17:30Day 1 programme ends
 Friday 12 November
09:00Welcome and Announcements
09:10Session 4 - Tort

Leo Boonzaier, University of Cape Town
(Commentator: Emmanuel Voyiakis)
 Nick Sinanis, Monash
(Commentator: Helen Scott)

10:40Break
11:30Session 5 - Standing and the Public/Private Interface

Tim Liau, National University of Singapore
(Commentator: Paul McMahon)
Edit Deutch, KCL
(Commentator: TBC)
Aness Kim Webster, Nottingham
(Commentator: TBC)

13:00Break
14:00Session 6 - Privacy and Consent

Jeevan Hariharan, UCL
(Commentator: Nick McBride)
Beth Valentine, North Dakota
(Commentator: Chris Mills)

15:30Break
16:00

Session 7 – John Gardner’s Impact on Private Law Theory
Aditi Bagchi (Chair)
Nick McBride
Sandy Steel

17:00Conference ends

 

About the Speakers

Leo Boonzaier (University of Cape Town)
Leo Boonzaier is a Lecturer in the Department of Private Law at the University of Cape Town. He studied social science and law at UCT and then earned a Bachelor of Civil Law from Oxford. In 2012 he worked as a research assistant to Prof Reinhard Zimmermann at the Max Planck Institute for Private Law in Hamburg, and in 2013-14 he clerked for Justice Edwin Cameron at the Constitutional Court of South Africa. Leo has taught tort, contract, land, and jurisprudence for various Oxford colleges as well as at University College London.

Edit Deutch (KCL)
Edit Deutch is a PhD candidate at King’s College London. Former associate in the litigation department of Meitar law firm in Israel. LL.B 2014, LLM 2018 (Cum Laude) at Tel Aviv University.

Martin Fischer (UCL)
Martin Fischer is a PhD candidate and an Associate Lecturer at UCL Laws. He previously worked as a research associate at the Max Planck Institute for Private Law in Hamburg and a fixed term lecturer at the University of Cape Town. His current research focuses on the justification for the restitution of mistaken payments.

Sarah Hamill (Trinity College Dublin)
Sarah Hamill is an Assistant Professor at the School of Law, Trinity College Dublin. Her main areas of research are property law, property theory, and legal history. Prior to taking up her current appointment, Dr. Hamill was a Lecturer at the City Law School, City, University of London (2016-17), and was the Catalyst Fellow at Osgoode Hall Law School in Toronto, Canada (2015-16).

Jeevan Hariharan (UCL)
Jeevan is a PhD candidate and Associate Lecturer at UCL Laws. His thesis, supported by a Faculty of Laws Research Scholarship, is a critical analysis of the protection of 'physical privacy' under English law. Jeevan holds BA (First Class) and LLB degrees from the University of Sydney, where he was awarded the University Medal in Philosophy, as well an LLM (First Class) from the University of Cambridge. Previously, Jeevan worked as a Legal Advisor at Linklaters LLP in London and as a Judicial Assistant at the Supreme Court of New South Wales.

Johanna Jacques (Durham)
Johanna Jacques is Assistant Professor in Law at the University of Durham. She has previously taught at the University of Warwick, the LSE and Birkbeck. Johanna publishes in the area of legal theory, using concepts from continental European philosophy in her analyses of law. She has a special interest in property theory, particularly the theory of the trust in its modern form. 

Pablo Letelier Cibie (Universidad de Chile)
Pablo Letelier Cibie is an Assistant Professor in the Department of Private Law at Universidad de Chile. He received his LLM from Columbia Law School and his PhD from the University of Edinburgh. His main research interests are in the law of obligations and comparative law.

Timothy Liau (National University of Singapore)
Tim Liau is an Assistant Professor at National University of Singapore. He researches in private law doctrine, and its philosophy. So far this has largely been in contract and unjust enrichment, but increasingly it has extended to torts. He wrote his DPhil on Standing in Private Law at the University of Oxford, under the joint supervision of Professors Robert Stevens and Sandy Steel, where he a was Stipendiary Lecturer in Law at Merton College, and also taught Commercial Remedies on the BCL.

Joaquín Reyes Barros (Universidad Finis Terrae)
PhD in Law, University of Edinburgh. Non-Resident Fellow, Yale Law School Center for Private Law. Faculty Member, Universidad Finis Terrae (Santiago, Chile).

Nicholas Sinanis (Monash)
Formerly a Peter Birks Scholar undertaking doctoral research in private law at University College London, Nick Sinanis is currently a Lecturer in Law at the Monash University Faculty of Laws, Australia. His research explores the interface between modern private law theory and the historical development of the common law, with a particular focus on common law damages, both in theoretical and historical perspective

Ohad Somech (Tel Aviv)
Ohad is a Post-Doctoral fellow at Tel-Aviv University and a research fellow at the Zefat Academic Center. Ohad was previously a research fellow at the Federmann Cyber Security Center, the Hebrew University in Jerusalem and a post-doctoral fellowship at the Safra Center for Ethics and at the Science-Po Law School. Ohad received his PhD from the Tel Aviv University Faculty of Law. His dissertation, ‘The Right of Contractual Regret: A Psychological Perspective’, explored the relations between emotions and the right to regret in contract law.

Beth Valentine (North Dakota)
Beth Valentine is an equity specialist in the Equal Opportunity and Title IX Office at the University of North Dakota where she specializes in affirmative action programs and equal employment opportunity. Prior to her current position she was an Assistant Professor of Philosophy at UND. Her research focuses on the practical intersection of philosophy and law, with topical interests in consent, tort law, and equity. She holds a PhD in Philosophy from Rutgers University and an M.S.L. from Yale Law School. 

Aness Kim Webster (Nottingham)
Aness Webster is an Assistant Professor of Philosophy at the University of Nottingham. Her research focusses on value theory, broadly construed, including ethics, philosophy of law, agency and responsibility, and philosophy of race. She is particularly interested in the lessons that we can learn from different branches of normativity and the parallels between issues arising in these domains. She is also interested in different notions of responsibility and invokes these notions to explain the differences between criminal and tort law.

Sally Zhu (Sheffield)
Sally Zhu joined the School of Law at the University of Glasgow as a Leverhulme Early Career Fellow in 2018.  She was awarded her doctorate by the London School of Economics (LSE) in January 2018.  She holds a Masters degree in Law (LLM) from University of Cambridge, and an LLB from LSE.

 
The Abstracts

Property


Johanna Jacques – The Life of Things: Re-appraising Equity’s Role in Property Law
The paper will seek to develop a new understanding of equity’s role, importance and value in the area of property law. It will argue that equity, rather than correcting or 'tempering' ownership rights that are imperfectly realised at law, shifts the focus from owners to the things owned: It is their existence, status and purpose with which equity is concerned. To this end, the paper will contrast theoretical statements about equity’s role with practical examples from the current law of trusts. The discussion will focus on trusts that, while not purpose trusts as such, involve a notion of purpose, namely Constructive and resulting trusts, such as trusts of the family home and Quistclose trusts, where equity is commonly conceived as correcting legal ownership, but where the purpose of the property forms an explicit basis for the ownership claim; and Trusts that least resemble, and could least well be replaced by, a debtor-creditor relationship, such as trusts over specific property (land, heirlooms, works of art), where the ability of the parties to sell, replace, use or destroy the trust property is restricted.

Sally Zhu – The Value Structure of Collaborative Property
The increasing incidence of sharing privately owned resources gives rise to a practice where the value of property is based on the contribution of labour-service by individual users. I call this ‘collaborative property’, because it seeks to preserve the features of flexibility and efficiency associated with private property, while maintaining the distributed nature of contribution and benefit characteristic of common property. What form of internal value system and external value proposition is created by walking this tight rope? Does collaborative property suffer from the same propensities of overexploitation of commons, or is it more susceptible to accumulation of capital like private property? How is value in collaborative property created, maintained, and distributed, and what personal or institutional incentives sustain this process? This paper seeks to delineate the archetypal characteristics of collaborative property from the aspect of value, and begin to outline the institutional infrastructure needed to support it.

The aim is to show that equity contributes something specific to the legal treatment of ownership that is distinct both from the understanding of ownership at law and from vague notions of justice or fairness that are sometimes associated with equity. It will argue that this contribution is based on an understanding of ownership that looks to things and their 'lives' (purposes, interests etc) rather than to persons. That these lives are themselves socially constructed only serves to underline the point: the law seeks to protect certain things from the control of absolute owners because these things have a social existence of their own that deserves consideration. Equity is a means of addressing this existence in the law of private property.

Sarah Hamill – Understanding Ownership
From a strictly orthodox perspective, the common law has no concept of ownership. Despite this, both property theorists and judges frequently talk about owners and ownership.  In the theoretical context, theorists seek to explain both the form of ownership and the content of ownership. The form is understood as referring to the sorts of relationships which ownership gives rise to, while the content is the rights and duties of owners. Meanwhile, judges use the terms owners and ownership in a largely descriptive sense, typically to identify particular parties.  The focus of this paper is on recent work attempting to define ownership in the common law.  Much of this work on ownership has sought to emphasise its specifically private law aspects and many theorists have argued for expressly relational accounts of ownership.

This paper argues that recent work on ownership, despite purporting to explain specific features of doctrine, fails to account for them.  In order to make this argument, this paper draws on doctrine to illustrate that the term “owner” has multiple meanings but the purposes of ownership are clear.  In particular, I draw on disputes where courts had to figure out who the “true owner” is and disputes over whether or not an owner has done something.  I argue that recent work on ownership, particularly that which emphasises it as an area of private law, cannot explain the outcome in these disputes. In so doing this paper seeks to advance the importance of doctrine to theory while also drawing on the increasing recognition amongst private law theorists that the dominant comprehensive theories of private law are falling short.


Contract


Ohad Somech – Theories of Consent and Theories of Assent in Contracts
The paper builds on the distinction between consent, defined as the choice between valuable alternatives, and assent, defined as acceptance of a dominant alternative, to suggest that theories of contract differ in how they view parties’ decision making, especially as it pertains to contract interpretation and construction. Thus, some theories (such as economic analysis) view the parties as assenting to a dominant alternative, while others view parties as consenting to a particular alternative and must to admit their inability to know what the parties would have chosen. This distinction, I argue, calls for a different understanding of the process of interpretation and construction. In particular, theories of assent view interpretation and construction as an attempt to identify the alternative the parties would have assented to, while theories of consent must admit their inability to know what the parties would have chosen and must find alternatives ways to either identify the parties intent or ignore intent altogether in the process of interpretation and construction.

Joaquín Reyes Barros  – On the Very Idea of a Just Price
This paper deals with a number of objections to the just price. In dealing with these objections, I intend to give support to two different but related claims: first, that these objections fail to provide reasons to dismiss the concept of a just price altogether; and, second, that some of these objections are best understood as providing alternative conceptions of the just price – alternative, that is, to the Scholastic doctrine of the just price based on commutative justice, rather than full blown rejections of it. To claim that some of these objections are, in reality, alternative conceptions of the just price entails a vindication of the kind of inquiry that the Scholastic tradition of just price theory represents, but also a partial restatement and revision of that same tradition in more pluralistic terms. The paper suggests that other justificatory values different from commutative justice such as efficiency, autonomy or distributive justice can also play a role in determining what price a good ought to possess.


Unjust Enrichment


Martin Fischer – Mistakes in Unjust Enrichment
The general consensus amongst those who seek a non-instrumental justification for the restitution of payments caused by a liability mistake is that the principal value which the claim serves is the one we find expressed in choice-making, the value of autonomy. If that is correct then it would suggest that the mistake which precipitates concern is a failure of the payor's choice-making. What went wrong, so to speak, is that the payor made a 'bad choice'. This observation though offers little insight into why these particular circumstances could justify a restitutionary response. A person's choice-making can go wrong in a myriad different ways, a choice can be 'bad' with corresponding variety. In what sense then is a mistaken payor's choice a bad one?

The answer to this, at least in relation to liability mistakes, can be found in the payor's choice to act for a reason about which she is mistaken. The reason which she acts for, the reason which explains what her actions were directed at achieving, is not a normative reason for that action. It is this bad choice – the mistake she makes in paying for a reason about which she is mistaken – which captures the particular failure which arises in the context of mistaken payments which the payor has reason to address.

It is her mistaken action, consisting in the payment (the transfer of money) to the recipient, which a mistaken payor then has reason to remedy. The claim for restitution is founded on the interest the payor has in 'fixing' her bad choice, in reversing her mistaken transfer of money to the recipient. The simplest and most direct way in which this can be achieved is for the recipient to pay the money back to the payor. This does not provide an explanation of why a mistaken payor can justifiably hold the recipient to such an obligation but it does explain why the claim is – at least as a starting point – against the recipient of the payment.

Pablo Cibie Letelier – Attribution in Unjust Enrichment? The Problem of Establishing a Sufficiently Close Connection
It has been recently argued that the link required to support unjust enrichment claims could only be established where the relevant benefit is brought about through a performance of the claimant accepted by the defendant. The paper will assess whether other kinds of connections may be reconciled with the purported correlative structure of the parties’ relationship underlying liability for unjust enrichment. It will be suggested that the answer we give to this question may define the way we conceive similarity among the cases which unjust enrichment scholarship analyses as forming a unified area of the law.


Tort


Leo Boonzaier – Duties and Anti-Instrumentalist Tort Theory
Opposition to the legal economists’ ‘instrumentalist’ understanding of tort law has coalesced around the claim that torts are wrongs, or breaches of duty.  The truth of that claim is presented, in other words, as the key to the reestablishment of any plausible theoretical account of tort law.  I argue that this view is badly mistaken; torts are not breaches of duty.  At least, they are not breaches of duty in any general and non-trivial sense, as they would need to be to support the theoretical claims I am describing.  The widespread belief that they are rests on various caricatures of the reasons for duty-scepticism and frequent slippage between different senses of the claim.  Once these are dispelled, we see there is no good reason to believe all torts are breaches of duty—or at any rate that the debate about whether they are has become an unhelpful internal squabble among anti-instrumentalists, whose wider ambitions would be better served in other ways.

Nicholas Sinanis – ‘A Farthing Damages’: Under-Compensation in Historical Tort
The concept of a duty to ‘make whole’ is central to corrective justice accounts of modern tort law. Tort remedies that exceed this Aristotelian ‘make whole’ requirement are closely scrutinised. Less attention, however, has been paid to tort remedies that fall short of it. This paper examines the phenomenon of ’under-compensation’ in historical tort. It does so through the prism of a normative institutional arrangement often overlooked by modern corrective justice tort theorists: the common-law jury.


Standing and Private Law / Public Law Interface


Timothy Liau – Private Law's Remedial Structure: Claimant Standing, Defendant Liabilities, and Court Orders
Standing is a well-recognised idea in public law. Yet, to the private lawyer working within the law of obligations, it remains a relatively neglected concept. Standing seems to have gone missing. To rehabilitate standing from relative obscurity it first needs to be distinguished from neighbouring related concepts that could occlude it from view. This article deals with one such concept. Its central claim is that standing, a power of the claimant, needs to be better differentiated from the court’s powers to issue orders. Both are significant, and neither power should be collapsed into the other. This is crucial to carving out the necessary conceptual space for a deeper understanding of standing’s place and significance within the remedial structure of private law.

Edit Deutch – The Illegality Defence from the Constitutional Perspective
The Illegality Defence limits the realization of rights derived by means of wrongful acts. In my paper I will examine the definition of the element which serves as the trigger for the application of the defence: ‘turpitude’. The boundaries of the definition I offer are shaped on the basis of a model, which I developed in my PhD dissertation at King’s College. This model views the application of the Illegality Defence by the Court as a deprivation of property (viz the claimant’s cause of action) by the state, which is motivated by the need to promote public interests. Viewed as such, the application of the Illegality Defence, as well as its components, are construed in accordance with constitutional safeguards and concepts. Thus, the definition of turpitude (the spectrum of which ranges from immoral acts to criminal offences) is informed by constitutional proportionality tests such as ‘appropriateness’ and ‘cost-benefit balance’. Those tests are applied in light of the ‘proper purposes’ or goals of the Illegality Defence (deterrence, promotion of moral values and maintaining the integrity of the court). Through the application of the proportionality tests in the described manner, I will identify the relevant turpitudes to be considered when applying the defence and re-evaluate the existing boundaries of the ‘turpitude’.

Aness Kim Webster – Distinguishing between Criminal and Tort Law: Rights and Responsibilities
I argue that various substantive doctrines in criminal law and tort law suggest that while criminal law implicates blameworthiness whereas tort law implicates a notion of responsibility that is weaker than blameworthiness. This suggests that one plausible way of a distinguishing between criminal law and tort law is appealing to different notions of responsibility. However, I argue that different notions of responsibility cannot provide the full explanation of the similarities and differences between these two domains of law. Hence, I propose a two-pronged explanation where the first prong appeals to different notions of responsibility and the second prong appeals to the rights that are protected by the two domains. Furthermore, I argue that my explanation can shed insight into the divergence of views on whether or not there is a principled distinction between tort and criminal law.


Privacy and Consent


Jeevan Hariharan – Physical Privacy and Bodily Integrity
English private law appears to recognise that a person’s privacy is multifaceted, embracing both unwanted access to private information (sometimes called ‘informational privacy’) and intrusions into one’s personal space (sometimes called ‘physical privacy’) (e.g. PJS v News Group Newspapers Ltd [2016] UKSC 26 [58]). The newly developed tort of misuse of private information (‘MOPI’) clearly protects informational privacy, but some scholars have gone further and suggested that MOPI can protect physical privacy as well. In this paper, I argue that those proposals are misconceived because they view both physical and informational privacy as serving the same values, in particular, individual autonomy. In doing so, they fail to recognise the unique way in which invasions of physical privacy compromise an individual’s bodily integrity, a concept which is related to but distinct from autonomy. Bodily integrity has been described as the ‘the first and most important of the interests protected by the law of tort’ (Parkinson v St James NHS Trust [2001] EWCA Civ 530 [56]). Yet, it has been under-explored in the context of privacy because it is commonly assumed that violating a person’s bodily integrity requires at least the actual ‘touching’ of the person’s body. I argue in this paper that, especially in light of modern technologies, touching represents a problematic basis upon which to understand the boundaries of bodily integrity. In its place, I offer a richer account of bodily integrity, which demonstrates why it is at issue in invasions to physical privacy such as unwanted surveillance. The upshot of this theoretical analysis is that the comprehensive protection of physical privacy requires private lawyers to move beyond the MOPI framework.

Beth Valentine – Why We Should Assume the Risk: An Argument for Consent-based Assumption of Risk
Assumption of risk is a defence to negligence and other nonintentional torts in which the plaintiff ‘assumes the risk’ of the harm for which she is seeking damages. Assumption of risk is also, to put it mildly, a bit of a conceptual mess. However, despite its muddled state – and its current decline in favour when compared to frameworks of comparative fault/responsibility – I argue that a version of the doctrine should be retained due to its relation to consent. In at least one sense, assumption of the risk respects and enhances autonomy and can be justified via reference to the normative value of consent. This paper will attempt to detangle the various versions of assumption of risk and identify which strands should keep their legal force.

 

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