Intellectual Property Law and Redressive Autonomy

Intellectual property law remains a body of private law, but for reasons that transcend its reliance on ideas and concepts from the common law of property and tort. This essay argues that the connection between forms of intellectual property law and private law is rooted in a form of autonomy that characterizes private law regimes—known as “redressive autonomy.” It shows how a strong commitment to redressive autonomy undergirds the unique right–duty structure of intellectual property, informs intellectual property’s central doctrines, and injects an additional layer of normative complexity into its functioning.

Third Party Effects in Private Law

This chapter identifies and explores a core task of private law: to determine “third party effects” of transactions. We ask to what extent an A–B transaction may affect C, a party who enters into a subsequent transaction with A, or otherwise interferes with the right claimed by B. We show first that such third party effects are controlled not only by rules relating to legal property rights and equitable interests, but also by parts of the law of agency, of partnerships, and of tort. Secondly, whilst a range of doctrines thus share this function of controlling third party effects, it is important to distinguish between the precise legal form used by each doctrine. Thirdly, we argue that even when considering one particular form, such as that of a legal property right, third party effect is determined by the interaction of different types of rules, with the practical operation of one type of rule modified by the application of a different type. For this reason, attention must be paid to the interaction between the different forms used to govern third party effect. There is a question as to whether the law in this area is unduly complex, but we suggest that, so long as the range of forms tracks the diversity of ordinary transactions, private law usefully enhances party autonomy by offering parties these different means of casting their legal relations.

When it is Wrong to Hold On

Private law as a rule presumes we hold on to what we have. A principle of non-derogation from the grant seems to be at odds with this: far from presuming that grantors part with the least they could on making a grant, the principle generates the presumption that a grantor conveys all she has to give. In this paper I explain the principle of non-derogation from the grant in terms of an appointment of a successor to a position of authority, and so the ideal of a grant as a conveyance of the full authority associated with that position. Voluntarist as to whether a legal power is exercised, the law’s approach is rationalist as to the effects of its exercise, making sense of particular grants in terms of the ideal of a grant. This explains both why there is a strong presumption against change in our relations with others (and the demand for juridical reasons to explain any change) and at the same time, once rebutted, a presumption that the grant conveys what is reasonably necessary for it to operate as the appointment of another fully to that position of authority.

The Hegemony of the Reasonable Person in Anglo-American Tort Law

Tort law has increasingly employed the rubric of the reasonable person in a variety of doctrinal domains. Many jurisdictions have rejected a differentiation of landowner duties according to the status of the entrant as trespasser, licensee, or invitee, and substituted a “reasonable person” test. Assumption of risk has been eliminated or greatly narrowed in favor of comparative fault, which asks simply whether the plaintiff failed to act as a reasonable person. The reasonable person plays a significant role even in intentional torts: apparent consent precludes liability when the defendant reasonably (though mistakenly) believes that plaintiff consented; putative self-defense precludes liability when the defendant reasonably (though mistakenly) believes facts that would establish that privilege; and offensive battery requires that the contact be offensive to a “reasonable” sense of dignity. What explains this widespread use of “reasonable person” tests? A desire for simplicity? The normative appeal of such a standard? Normative modesty about adopting a more controversial standard or about specifying more detailed rules? A concern to empower juries? Inertia or lazy thinking? Are such tests mainly descriptive (of ordinary conduct) or mainly idealized and prescriptive? In answering these questions, this paper argues that the hegemony of the reasonable person is sometimes a welcome but often an unwelcome development.

Property as Intangible Property

Historically, property theory has focused on real property as the premier example of property, reflecting the longstanding importance of land as a source of wealth and political power. This essay argues that it is time for property theorists to pay more attention to intangible property. It makes three main points. First, it emphasizes the contemporary economic importance of intangible property, as well as its increasing social importance in everyday life, especially in highly urbanized, developed countries. Second, it posits that the currently prevalent thing-based understanding of property is sufficiently capacious to embrace intangible property. Third, it speculates about why property theory has remained largely focused on tangible forms of property. It concludes by underscoring potential benefits of property theory paying greater attention to intangible property: an expanded focus on intangible property might lead to greater recognition of the constrained character of property in the modern urbanized world, and greater acknowledgment of the potential for property—albeit likely in a constrained form—to play a role in addressing the consequences of modern technology.

Duties and Damages

This essay looks at the relationship between primary and secondary duties. If I breach a duty I owe to you, the law’s standard response is that I must pay you damages for such losses as I thereby cause. Some have thought that we understand what duties we owe only by looking to the sanctions the law imposes in the event of “default”: if all the law will compel me to do is to pay you damages, this is the sum of my duty to you. But the truth is that the content of these sanctions tells us little to nothing about these duties; the question of how I should conduct myself in my dealings with you is simply different to the question of what action the law should take if I do not do as I should. So, just as our legal duties cannot be read off from the law’s sanctions, so we should not think that the law falls short when it fails to compel performance, or such performance as remains possible, of our duties. But while looking to the content of my duty does not tell us how the law should respond to its breach, the considerations which ground that initial duty may shed light on this question. How much light? In the final sections, I offer some reasons for doubting whether the basis of our secondary duties is always, or even commonly, to be found in the considerations which ground the relevant primary duty.

Good Faith in English Contract Law

Contrary to orthodoxy, good faith is no stranger to English law. Properly understood, we have been “speaking prose all our lives without knowing it.” The debate over whether to introduce a doctrine of good faith is therefore misconceived—the horse has bolted; the stable door has opened. Rather, the salient questions are: (i) How can a good faith requirement be justified? (ii) What role should it play in the evolution of English contract law? (iii) What does good faith require? And, (iv) how can we start to taxonomize its demands in order to stabilize its requirement? We support a humble role for good faith as an attitude of honesty, fair dealing, and fidelity to the contractual purpose that is, in turn, constitutive of the activity of contracting. These three aspects are manifest in many contract law rules that apply with different intensity and effect to the four categories of contracts that we identify. This is our proposed taxonomy “3 by 4.” Open recognition of this humble version of good faith will: make explicit the implicit ethical content of English contract law, enhance our understanding and organization of many apparently disparate rules, legitimize these rules and facilitate legal development in a manner consistent with common law incrementalism. This leaves open the policy questions of how far and how fast English law should travel down the road of good faith.

Culpability and Negligence

How blameworthy is negligence? Recently this perennial question has reappeared, with several scholars arguing that negligence is not blameworthy. On this view, actors should be judged only by the information, beliefs, and reasons that they actually had. To hold them blameworthy for things that were not part of their mental calculus is incoherent, unfair, or both. In this essay, I dispute the non-culpability view with both intuitions and arguments about its perverse implications. I also begin to sketch a view that connects the blameworthiness of negligence to the consideration that we attempt to inculcate in ourselves and others. Limiting culpability to a subjective state locates our responsibilities entirely within the confines of our own minds and what we have consciously chosen to take on board. It does not hold us accountable for failing to attend to the world and people around us. This seems wrong in itself. It also has disturbing implications in rewarding obliviousness, a privilege often available only to the lucky few, while penalizing conscientiousness, a trait often thrust upon the marginalized. While this piece offers only a sketch of these issues, it identifies a few sources of resistance to the conclusion that negligence cannot be blameworthy.