Tag Archives: Administrative Law

Second Test of 1.2

Dec 5, 2010 Michael FroomkinAdministrative Law

Michael Froomkin

Predictions have ranged from cybernetic anarchy (both utopian and distopian) to the instantiation of a fascistic regime of surveillance that would make Orwell look like a piker. Some see a winner-take-all economy of massive new monopolies emerging on the back of network effects, others see the growth of a new economy in which intermediaries are replaced by huge open networks of buyers and sellers trading with e-cash on anonymous electronic exchanges — and evading their taxes. Meanwhile enthusiasts of electronic democracy and popular empowerment offer a vision sharply at odds with that of Cassandras of globalization for whom the Internet provides yet another occasion for decision-making authority to seep away towards relatively undemocratic trans-national bodies. One would think that such contrasting predictions cannot all be correct. Strangely, however, there is at least some truth in each of them, for the Internet phenomenon is becoming as complicated as the world into which it is woven. The Internet is neither “fraud’s playground” nor democracy’s. Indeed, there is more than one “Internet”. Thus, today, lawyers and policymakers should not let themselves be blinded by the term, but rather must identify the very few areas where the Internet genuinely creates a radical change that requires a radical legal response, reserving for the large majority of cases a nuanced and evolutionary approach to the political and legal challenge of cheap worldwide digital communications.

The growth of the Internet has provided ample occasion for futurists to make bold predictions about the changes it will bring, and their consequences for markets, governments and persons.

As these consequences become evident, governments are responding with legislation and treaties designed to hasten or, more often, forestall those developments.

Predictions have ranged from cybernetic anarchy (both utopian and distopian) to the instantiation of a fascistic regime of surveillance that would make Orwell look like a piker. Some see a winner-take-all economy of massive new monopolies emerging on the back of network effects, others see the growth of a new economy in which intermediaries are replaced by huge open networks of buyers and sellers trading with e-cash on anonymous electronic exchanges — and evading their taxes. Meanwhile enthusiasts of electronic democracy and popular empowerment offer a vision sharply at odds with that of Cassandras of globalization for whom the Internet provides yet another occasion for decision-making authority to seep away towards relatively undemocratic trans-national bodies. One would think that such contrasting predictions cannot all be correct. Strangely, however, there is at least some truth in each of them, for the Internet phenomenon is becoming as complicated as the world into which it is woven. The Internet is neither “fraud’s playground” nor democracy’s. Indeed, there is more than one “Internet”. Thus, today, lawyers and policymakers should not let themselves be blinded by the term, but rather must identify the very few areas where the Internet genuinely creates a radical change that requires a radical legal response, reserving for the large majority of cases a nuanced and evolutionary approach to the political and legal challenge of cheap worldwide digital communications.

ZS2 Ordinary Post With Categories

Nov 10, 2010 Michael FroomkinAdministrative Law

Michael Froomkin

I’ve categoried this as “Administrative law”. Tagging isn’t the problem, Categories are. I’ve set this to get 4 paragraphs.

In Hauter, the warranty was express, although the remedy in the event of injury was not stated, so the court never had to reach the question of whether consequential damages could be limited by contract. The reliance issue is one on which an enormous amount of ink has been spilled.

My basic position is that reliance as an independent element should never be relevant where there is privity between the plaintiff and the defendant. The defendant has indicated a willingness to be bound and has been paid to take the risk in question.

There is no stipulation for reliance at the time of the agreement and none should be imposed on the plaintiff after the fact. But those cases in which there is no privity represent a very different kettle of fish indeed. If there is no reliance, it is impossible to see how any linkage can take place between the parties if there is neither an intention to be bound by the defendant nor an intention to bind the defendant by the plaintiff.

Indeed in my view, the reliance issue here should be decided by the same approach taken by third-party-beneficiary contracts: the former question should be the decisive one: does the defendant have a willingness to be bound? Therefore, in dealing with this line of cases the right question should be: where there is contractual silence, does the creation of the third party action look as though it is, ex ante, for the joint benefit of the parties? Within the context of Hauter, at best U.C.C. 2-313 should switch the burden of proof, and not dispense with reliance altogether.

2-J Corporation follows the modern trend to exempt from the contract rules goods stored in a warehouse, where again the variation in values makes it hard to charge a sensible premium for the original sale. Treating the replacement engine rods in Sea-Land as original property has to make sense because this is contemplated from the outset, and the new stuff just takes the place of the old stuff, and is not added on. All in all, however, these cases do not demonstrate any principled analysis of the insurance question. Rather, they take a doctrinal category that itself is imperfectly realized and apply it to new situations.