Future Litigation Research Articles

Rescue Me! The Attack on Settlement Negotiations after ResQNet v. Lansa

Patent litigation often results in settlement with the parties agreeing to a license involving the patent-in-suit. Licenses arising out of litigation are commonly referred to as settlement licenses or litigation licenses. The terms of a license resulting from settlement negotiations may depend on many factors such as the technology involved, the competitive position of the parties, the anticipated cost of further litigation, and the relative strengths of each party’s claims. Prior licenses involving the patent-in-suit play a central role in establishing damages for patent infringement. Although parties emphasize prior licenses, courts have traditionally deemed settlement licenses inadmissible as evidence due to the concern that these licenses lack adequate probative value. Courts have found that two considerations weigh against admission: the complexities of litigation and the multitude of factors unrelated to the value or validity of a patent that nonetheless affect the parties’ decision to settle. Despite the traditional bias against admitting settlement licenses, the Federal Circuit’s opinion in ResQNet.com Inc. v. Lansa Inc. brought the issue of admissibility of settlement licenses back into question. In ResQNet, the Federal Circuit vacated and remanded a damage award for patent infringement because the district court improperly determined the reasonable royalty rate. After evaluating the various licenses considered by the district court, the Federal Circuit stated that “the most reliable license in this record arose out of litigation.” Based on this statement, some district courts have expanded admissibility of settlement licenses in patent cases and have also opened up discovery of the underlying settlement negotiations, leaving litigators and other courts questioning how licenses arising out of settlement negotiations may be used in future litigation. Of particular interest is the inconsistent treatment of settlement licenses within the Eastern District of Texas. This uncertainty is causing parties to fear that negotiations in one case will be used against them down the road, which could have a significant chilling effect on settlement generally.This Note attempts to address several issues arising from the ResQNet decision. Part I reviews the discovery and admissibility of litigation-induced licenses as well as their underlying negotiations. Part II discusses the ResQNet case and how district courts have interpreted the opinion. Part III addresses three key questions arising from ResQNet: (1) To what extent settlement licenses and negotiations should be admissible or discoverable in the wake of the ResQNet decision; (2) If admitted, how settlement licenses should factor into a reasonable royalty analysis; and (3) How increased admissibility might affect patent litigation and settlement negotiations. This Note argues that courts should decide the admissibility of settlement licenses on a case-by-case basis so that judges can balance the relevant rules of evidence and civil procedure in making these determinations. It also argues that increased discovery of settlement negotiations based on ResQNet conflicts with the recent judicial policy trend to promote settlement, and that the justification being used to support discovery relies on a flawed assumption regarding the reliability of settlement communications.

Moving Toward Law: Refocusing the Federal Courts’ Plain Error Doctrine in Criminal Cases

This article examines the plain error doctrine in criminal cases in the federal courts. An examination of the earliest plain error cases shows the federal courts’ concern that, without the authority to address errors not preserved with a contemporaneous objection, federal courts would affirm convictions and sentences that were either wrongful or unfair. But the plain error doctrine that the federal courts now employ, as announced in United States v. Olano, is poorly suited to discovering and correcting even the serious errors that the plain error doctrine was intended to remedy. Because the doctrine is discretionary and fact-specific, it fails to generate precedents to guide future courts and litigants and perpetuates a guilt-based approach to evaluating errors. Moreover, Olano’s four-pronged test leads appellate courts away from the most critical inquiry: did the error undermine the fairness and reliability of the defendant’s conviction and sentence? The article proposes a new formulation of the plain error doctrine that addresses these problems.

Supreme Court to Hear Landmark Case on Climate Change Emissions: Judgment Day Comes in Global Warming Litigation

The Supreme Court has historically been reluctant to involve itself in environmental matters, especially those relating to the regulation of releases or emissions of harmful substances. The court has typically been content to allow the legislative branch to fashion appropriate regulations to address environmental issues and for the executive branch to enforce those regulations. The acceptance of certiorari in the Second Circuit's Connecticut v. AEP case was a surprise because it not only involves environmental regulation, but also the common law applicable to public nuisance actions seeking redress for climate change damage allegedly caused by emissions of greenhouse gases (GHGs). The AEP case is shaping up to be a blockbuster in the climate change debate in the United States, and the decision could have broad repercussions in not only future litigation involving climate change, but also GHG legislation and the insurance available to address damage due to weather-related events.

Analysis of Carbon Capture and Sequestration Pore Space Legislation: A Review of Existing and Possible Regimes

State-level CCS legislation, especially related to pore space designation, has blossomed over the last few years. However, the legislation that has passed does not yet provide an environment that would lead to the successful commercialization of CCS. Allowing the federal government to assume pore space ownership would not solve all the problems, but would certainly simplify some of them by reducing the amount of future litigation.

Non-signatories’ Right to Appeal the Denial of a Stay of Litigation: Arthur Andersen L.L.P. v. Carlisle

In Arthur Andersen L.L.P. v. Carlisle, the U.S. Supreme Court held that any litigant—even a party who has not signed an underlying arbitration agreement—who seeks a stay of litigation pending arbitration under the U.S. Federal Arbitration Act (FAA) is entitled to an immediate appeal from a denial of that motion. This highly disturbing decision fails to engage with important principles of arbitration law and creates a clear, but ultimately problematic, rule for future litigants.

Analysis of lawsuits filed against emergency physicians for point-of-care emergency ultrasound examination performance and interpretation over a 20-year period

ObjectiveThe study aims to define extent of lawsuits filed against emergency physicians (EPs) over point-of-care emergency ultrasound (US) during the last 20 years. MethodsWe performed a nationwide search of the WESTLAW legal database for filed lawsuits involving EPs and US. WESTLAW covers all state and federal lawsuits dating back to 1939. Using an electronic search feature, all states were searched using emergency and US as key words. The database automatically accounts for different variants on US such as sonography. An attorney who is also boarded in and practices emergency medicine, as well as an emergency US expert, reviewed returned cases. Descriptive statistics were used to evaluate the data. ResultsUsing the search criteria and excluding obvious radiology suits, 659 cases were returned and reviewed. There were no cases of EPs being sued for performance or interpretation of point-of-care US. There was one case alleging EP failure to perform point-of-care US and diagnose an ectopic before it ruptured. This case was won by the defense. There were no cases against EPs for common causes of radiology and obstetric litigation including sexual assault during endovaginal US. Cases of missed testicular torsion on US were frequent in the emergency setting but none linked EP US. ConclusionsOnly one case filed against EPs over the last 2 decades was identified, it was over failure to perform US. Most frequent litigations against radiologists and obstetricians are unlikely to be duplicated in the emergency department, and future litigations may also come from EP failure to perform point-of-care US.

Bridging the Divide between Justice Breyer's Progressivism and Justice Scalia's Originalism

This Article introduced the concept of “reverse” or negative originalism. To begin with, “reverse originalism” recognizes that both Justice Kennedy's progressivism and Justice Scalia's originalism contain valuable aspects that should remain relevant to values based constitutional adjudication. For example, in some cases, evolving or contemporary perspectives of fairness and due process should inform Court's decisions. Indeed, the collective conscience of individuals, groups and institutions, over time, both domestic and international, can provide important insights into the liberty that lies at the core of the U.S. constitutional framework. Importantly, however, progressivism is not without its limitations and, if applied exclusively, would threaten to undermine years of Supreme Court jurisprudence. It could, for example, undermine the stare decisis doctrine, risk uncertainty and unpredictability for future litigants, unduly compromise the core majoritarian premise of our democratic system, and potentially invest in judges a legislative or policymaking power that transgresses the boundaries of proper judicial review. A significant check upon progressivism, therefore, lies in maintaining the relevance of tradition and history. The Constitution's text does -- and should -- matter, because it prevents the Court from issuing decisions in the name of liberty that, paradoxically, make governance less democratic.

Rescue Me: The Attack on Settlement Negotiations after ResQNet v. Lansa

Patent litigation often results in settlement with the parties agreeing to a license involving the patent-in-suit. Licenses arising out of litigation are commonly referred to as settlement licenses or litigation licenses. The terms of a license resulting from settlement negotiations may depend on many factors such as the technology involved, the competitive position of the parties, the anticipated cost of further litigation, and the relative strengths of each party’s claims. Prior licenses involving the patent-in-suit play a central role in establishing damages for patent infringement. Although parties emphasize prior licenses, courts have traditionally deemed settlement licenses inadmissible as evidence due to the concern that these licenses lack adequate probative value. Courts have found that two considerations weigh against admission: the complexities of litigation and the multitude of factors unrelated to the value or validity of a patent that nonetheless affect the parties’ decision to settle. Despite the traditional bias against admitting settlement licenses, the Federal Circuit’s opinion in ResQNet.com Inc. v. Lansa Inc. brought the issue of admissibility of settlement licenses back into question. In ResQNet, the Federal Circuit vacated and remanded a damage award for patent infringement because the district court improperly determined the reasonable royalty rate. After evaluating the various licenses considered by the district court, the Federal Circuit stated that “the most reliable license in this record arose out of litigation.” Based on this statement, some district courts have expanded admissibility of settlement licenses in patent cases and have also opened up discovery of the underlying settlement negotiations, leaving litigators and other courts questioning how licenses arising out of settlement negotiations may be used in future litigation. Of particular interest is the inconsistent treatment of settlement licenses within the Eastern District of Texas. This uncertainty is causing parties to fear that negotiations in one case will be used against them down the road, which could have a significant chilling effect on settlement generally.This Note attempts to address several issues arising from the ResQNet decision. Part I reviews the discovery and admissibility of litigation-induced licenses as well as their underlying negotiations. Part II discusses the ResQNet case and how district courts have interpreted the opinion. Part III addresses three key questions arising from ResQNet: (1) To what extent settlement licenses and negotiations should be admissible or discoverable in the wake of the ResQNet decision; (2) If admitted, how settlement licenses should factor into a reasonable royalty analysis; and (3) How increased admissibility might affect patent litigation and settlement negotiations. This Note argues that courts should decide the admissibility of settlement licenses on a case-by-case basis so that judges can balance the relevant rules of evidence and civil procedure in making these determinations. It also argues that increased discovery of settlement negotiations based on ResQNet conflicts with the recent judicial policy trend to promote settlement, and that the justification being used to support discovery relies on a flawed assumption regarding the reliability of settlement communications.

Proceduralisation’s Triumph and Engagement’s Promise in Socio-Economic Rights Litigation

Three of the Constitutional Court’s socio-economic rights decisions of the 2009 term are the culmination of a strong trend towards the proceduralisation of socio-economic rights that many commentators have argued fails to fulfil their original promise. This triumph of proceduralisation undeniably restricts the direct transformative potential of these rights. But there is another aspect to this trend – an aspect reflected in the Court’s emphasis on participatory democracy and the ability of procedural remedies to democratise the rights-enforcement process. This article considers what the triumph of proceduralisation means for future social and economic rights litigation and argues that properly developed the engagement remedy can give poor people and their advocates an important and powerful enforcement tool. At the same time, engagement can help strengthen and promote consistent attention to the constitutional values these rights protect. Tapping this potential requires the Constitutional Court and lower courts to apply the remedy more consistently, to develop its requirements more fully and to apply those requirements robustly where government fails to engage meaningfully on social welfare policy. The courts are only the starting point, however. For engagement to truly succeed, government must develop comprehensive engagement policies and institutionalise those policies at all levels. Finally, civil society must expand its role beyond pressing for engagement in individual cases into advocating for such institutionalisation.

Introduction

Introduction Melvin I. Urofsky Everytime I write an introductionto anew issue oftheJournal, I am amazed at the variety of topics that are included. In the past I have noted, and will note again, that when I was in college and even in graduate school, courses in constitutional and legal history consisted al­ most entirely ofcases. One mightreadLochner v. New York (1905), for example, and spend all of the time on Rufus Peckham’s majority opinion and Oliver Wendell Holmes’ dissent (one sort of dismissed the Harlan dissent, al­ though in jurisprudential terms it is far better than that ofHolmes). No one paid attention to the Progressive Era campaigns to secure bet­ ter working conditions and limits on how long a person labored, or how Lochner and other cases affected the politics of the time. Even when I went to law school in the early 1980s, the history surrounding cases was absent in nearly all classes. As Judge Posner once remarked in dismissing judicial biogra­ phies, it did not matter where a Justice came from or what elements inhis or herbackground led to a particular opinion. For lawyers and judges, the only thing that mattered in a case was the bottom line—what did the court say the law was, and how would this affect future litigation or prosecutions? Were we still in this era, none of the arti­ cles in this issue would have seen the light of day. Tony Freyer and Daniel Thomas do have an article on the 1849 Passenger Cases, but they are looking atthat decision not so much in light of internal jurisprudential logic as in the far broader context oftransatlantic commerce. In doing so, they arejoining a new wave ofhis­ torians who, while still interested primarily in American history, argue that, not only during the colonial times but afterwards, the United States has to be seen in the larger context ofthe Atlantic region—of the commercial, cultural, social, and economic interactions between the United States, on the western side ofthe ocean, and Great Britain and other European powers to the east. Dale Yurs finished his master’s degree in history at the University ofNorthern Iowa, and his mentor, John Johnson, suggested that he send part of it to us so we could consider it for publication. We liked what we saw, and sug­ gested that his chapter on circuit-riding and its hardships would be interesting to our readers. v vi JOURNAL OF SUPREME COURT HISTORY Everyone knows that, for a century, the Jus­ tices complained about what they saw as the most onerous part oftheirduties, and Dale tells us why. Anotherpiece writtenby the authorduring student days is Chris Hickman’s examination of how Richard Nixon targeted the Supreme Court and its decisions in the 1968 presidential election. That article is the winnerofthis year’s Hughes-Gosset Student Prize. The Court as an object of political condemnation is not unusual in American history: Thomas Jeffer­ son condemned the Marshall Court, Abraham Lincoln attacked the Dred Scott decision, and both Theodore Roosevelt and his cousin Franklin had some harsh things to say about the High Court. Nixon, however, took the crit­ icism to a new level. The case of Bradwell v. Illinois continues to serve as a teaching tool for understanding the status of women in the latter part of the nineteenth century. Myra Bradwell herselfwas an extraordinary woman, and, despite the prej­ udice she faced, she became one ofthe leading legal figures in the Midwest. John Lupton’s re­ search uncovered interesting documents con­ cerning her work, and we are pleased to be the venue in which they come to light. In some ways, the remaining articles this month are somewhat “internal.” Peter Bozzo and Lilit Sheymajash “Shimmy” Edwards are former judicial interns at the Supreme Court, while April Christine is a former Supreme Court Fellow. Their manuscript caught my at­ tention because I am currently working on a book on dissent, and their article on the origins ofdissent in the High Court is chock-full ofthe type of information that is not only useful to me, but also interesting to anyone who follows the Court’s history. Clare Cushman, of course, is our man...

International Law and the U.S. Common Law of Foreign Official Immunity

In Samantar v. Yousuf, 130 S. Ct. 2278 (2010), the U.S. Supreme Court unanimously held that the Foreign Sovereign Immunities Act does not apply to lawsuits brought against foreign government officials for alleged human rights abuses. The Court did not necessarily clear the way for future human rights litigation against such officials, however, cautioning that such suits may still be barred by foreign sovereign immunity under the common law. At the same time, the Court provided only minimal guidance as to the content and scope of common law immunity. Especially striking was the Court’s omission of any mention of the immunity of foreign officials under customary international law (CIL). In this Article, we explain why, notwithstanding the Supreme Court’s inattention in Samantar to the international law backdrop of the case, CIL immunity principles are likely to be relevant to the development of the post-Samantar common law of immunity. In considering the relationship between CIL and common law immunity, the Article makes three contributions. First, it sets forth a case for CIL’s relevance that is not dependent on a single theoretical perspective regarding the domestic status of CIL. Second, it presents a balanced assessment of the rapidly evolving CIL landscape, noting in particular the erosion of immunity protections for human rights violations in criminal proceedings and the lack of a similar erosion - at least so far - in civil suits for damages. Third, by emphasizing institutional considerations rather than arguing for a particular outcome, it isolates and analyzes particular variables - such as the views of the Executive Branch and the policies embodied in domestic statutes - that will shape how CIL affects the common law of immunity after Samantar.

Becoming Unsafe Overnight: Managing Historic Buildings as Building Regulations and Standards Change

Building standards and regulations have been around for a long time, and most historic structures were built in accordance with whatever codes existed at the time. However, as codes have changed (often in response to natural or human-caused disasters) these buildings have become progressively less compliant, making their continued occupation and use difficult without extensive and often damaging alterations to their significant spaces and fabric. In Australia, there have been considerable changes to standards over the past two hundred years to deal with apparent deficiencies in the codes exposed as a result of bushfires, earthquakes, cyclones and rising sea levels. Building regulations have also changed so as to deal in ever more detail with health and safety matters, as well as issues such as equitable access and energy efficiency. These changes have had an impact on historic buildings and structures, in the most extreme cases leading to loss of the building where owners anxious to redevelop can convince the authorities that preservation and upgrading to meet current standards will impose unreasonable economic hardship. In other cases, the insensitive and sometimes over-cautious application of codes (often to reduce the risk of future litigation or loss of insurance) leads to almost as much damage to the historic building as the upgrading work is intended to avoid if a disaster occurs. Conserving historic buildings while keeping them safely in active use requires a flexible and innovative approach to the regulations, as exemplified in the work of the Heritage Council of New South Wales Fire Access and Services Advisory Panel, of which the author was a foundation member.

The EU Ban on Seal Products: Some Customs and WTO Open Questions

The recent adoption by the EU of a regulation as to the ban of seal products has left unsolved a number of legal issues; namely, in the areas of (1) EU customs law and (2) the WTO law. As to the EU customs law, for example, the regulation lacks provisions as to the administration of the customs procedures. For example, the transit regime is undefined in the regulation. Thus, the legitimacy of the transit of seal products is still uncertain and open to several interpretations by national authorities. The way transit as to the seal products regime will be managed, this will inevitably affect other sectors of trade. In addition, the regulation lacks as well clear rules for the implementation of a harmonized custom penalty regime. How this is implemented will determine whether it is consistent with the general principles of EU law. These and other legal issues will affect directly or ‘de relato’ a great number of trading sectors, which are involved in the seal products trade, because as changes are made to create harmony with EU law, other sectors will inevitably be affected. Further, with reference to the World Trade Organization (WTO) law, in late 2009, Canada and Norway have brought a complaint against the regulation, claiming the inconsistency of the latter in the light of the WTO law. The pending litigation, which is mainly about environmental issues, may reach a new striking interpretation of several WTO principles, for example, as to the general exemption under Article XX(b) of the General Agreement on Tariffs and Trade (GATT) 1994 and, in general, as to Article XX of the GATT 1994. Indeed, in the previous few case laws involving animals health issue, such as US-Shrimp, such general exemption under Article XX(b) was not analysed by the Appellate Body. Therefore, this seal product litigation could instead push WTO jurisprudence ahead on the interpretation of Article XX(b) and the consistency of the measures in the light of the chapeau of Article XX of the GATT 1994. It goes without saying that the interpretation that the WTO judicature will possibly make over these issues will constitute a case law, which will be invoked in many future WTO litigation.

THE EVOLUTION OF CONTRACT REMEDIES (AND WHY DO CONTRACTS PROFESSORS TEACH REMEDIES FIRST?)

This essay traces the evolution of the scholarly understanding of contract remedies, beginning with the era in which the compensation principle and expectation damages dominated. Fuller and Perdue's classic articles in 1936/1937 and the theory of efficient breach in the 1970s each offered important justifications for the principle. However, as economic analysis extended to incorporate a wider range of incentive and risk-bearing goals, support for the compensation principle became increasingly frayed. The emergence of the incomplete contracts theory further weakened its normative significance. In practice, the cutting-edge uses of contract damages pursue several other objectives unrelated to compensation. In particular, damages promote contracting goals by (a) providing prices for embedded options or (b) setting the stakes, and thereby incentives, for future litigation. Finally, the essay discusses the design of ‘tiered’ damages within a single contract that are triggered by different contingencies. In this sense, damages and contract conditions act as complements as well as substitutes. In light of the complex and interactive role played by contract remedies, the author suggests that this topic should be taught near the end rather than at the beginning of the first-year contracts course.

Nurse prescribing: does more responsibility mean more litigation?

This paper examines the current legal regulation of nurse prescribing. It considers the background to, and current position in relation to patient group directions, and independent and supplementary prescribing. It explores the prospect for enhanced liability which may result from such expansion in role. It considers some of the dilemmas which may result, and some of the practical safeguards which need to be in place to reduce the possibility of future litigation.

Accounting for Bad News: Securities Fraud Litigation and the Equal Application of Market Efficiency

The Fraud-on-the-Market theory holds that high volume markets, such as the New York Stock Exchange, effectively incorporate all available information of present and expected value into a security’s price. As endorsed by the United States Supreme Court, fraud on the market serves an important procedural role within the context of securities litigation by providing a general reliance presumption for all investors. An investor, or class of investors, is able to sue upon a claim of management misrepresentation without having to show actual reliance on the fraudulent information. When a market is assumed to be efficient, misinformation is deemed to defraud investors who have relied upon the integrity of the market itself. The presumption of market efficiency may thus be seen as an aspirational device, for placing the costs of rebuttal upon a corporation is said to encourage market transparency and the very same integrity of information that is assumed theoretically. For the soundness of market information to be encouraged through such a litigation presumption, the effect should not become counter-distorting through the double compensation of litigation loss. If fraud on the market is to be applied with consistent logic, then one must assume that the instant a misrepresentation is made public that rational investors will automatically discount the stock price to account for the inevitable class action suit that will arise. A post misrepresentation fall in share price generally serves as the basis for securities fraud claims of loss. Yet, this entails that plaintiffs are able to recover on a market valuation that includes both the diminishment in the asset due to fraud and the anticipated cost of its future litigation. Unlike traditional fraud recovery, the operation of an anticipatory market incorporates litigation outcomes into asset valuation at the time of awareness. Accordingly, damage recovery may unwittingly grant relief on a loss assessment that is composed of two factors: 1) the market assessment of asset devaluation due to fraud; and 2) the market prediction of the very same plaintiff recovery. One can then see that plaintiffs have their litigation recovery count twice: as they receive it from the court, and as it formed the basis of the very amount of claimed loss. In response to this problem, the following paper draws upon methods of alternative company valuation to arrive at a simple formula for filtering out anticipated litigation loss from securities damages.

Sub-surface model predictions and regulatory requirements

In recent years the construction of sub-surface models to understand complex systems has become almost ubiquitous. At the same time, societies have become more litigious and governments in the Asia-Pacific region have become more demanding in their technical requirements for exploration and development approvals. But most experienced geoscientists that really understand the capabilities of these models are much more sceptical about the predictive capability of reservoir modelling and acknowledge that even their best models are either highly subjective or quantified guesses. If reservoir models provide technical justification for investment decisions or, especially in the case of CO2 sequestration, decisions that may face future litigation, then it is important to be able to quantify their capabilities and to place reasonable limits on the expectations of these models. The simple question, ‘What is a good reservoir model?’ raises many different answers from a group of geoscientists, and yet if we are not clear on what a good model is, how can we conceptualise better models as distinct from worse models? Without clear guidelines for good models it is difficult to determine who is qualified to build a model or who is qualified to audit a model. In this situation, if authorities continue to increase their demands for models to support reservoir management decisions, then many months of effort will continue to be wasted in the construction of models with no numerical validity or predictive capability. One of the aims of this paper is to open discussion on these issues and to suggest areas where clear consensus needs to be established for the benefit of the industry, the Government and our society. Uncertainty in structural interpretation and uncertainty in deposition have a significant impact on good reservoir management for individual companies and on the wise management of national resources. The application of good modelling practices and appropriate validation by regulatory authorities is a sensible aim for our industry and one that has been overlooked for too long.

The evolution of contract remedies (and why do contracts professors teach remedies first?)

This essay traces the evolution of the scholarly understanding of contract remedies, beginning with the era in which the compensation principle and expectation damages dominated. Fuller and Perdue's classic articles in 1936/1937 and the theory of efficient breach in the 1970s each offered important justifications for the principle. However, as economic analysis extended to incorporate a wider range of incentive and risk-bearing goals, support for the compensation principle became increasingly frayed. The emergence of the incomplete contracts theory further weakened its normative significance. In practice, the cutting-edge uses of contract damages pursue several other objectives unrelated to compensation. In particular, damages promote contracting goals by (a) providing prices for embedded options or (b) setting the stakes, and thereby incentives, for future litigation. Finally, the essay discusses the design of ‘tiered’ damages within a single contract that are triggered by different contingencies. In thi...

Pravna priroda javnog beležništva

The legal nature of public notariat has been a long time subject to bitter controversies in legal theory, legislation and practice. The crucial question is whether public notariat is exclusively or at least predominantly a specific public service, or could it be integrated within the framework of free professions. Though legal regulation differs from country to country each directing notariat more either towards public service or free profession, its essential features remain common, its legal nature in the first place. Arguments supporting either legal public or legal private nature of notary public are many and different. Still, accusations as to dual legal nature of public notariat are unacceptable, for all its richness, as well as its primary and basic originality stem from the very juncture of a public service and a free profession. The most convincing argument in support of the mixed legal nature of this office lies in an unbreakable juncture between its obligation of drawing up legal documents and its obligation of counselling the client. The latter endows an agreement with an internal security, while drawing up of a public document - as a next step in the notary public practice - brings about the external one. The first justifies the second, and both serve the same purpose - preventing future litigations. Therefore the question which of this profession aspect prevails - public service or free profession - is a wrong one. Thus, the most rational is to claim that the two aspects of notary public office are so essentially inter-connected that any judgement as to which of them prevails becomes impossible.

The Evolution of Contract Remedies (and Why Do Contracts Professors Teach Remedies First?)

This essay traces the evolution of the scholarly understanding of contract remedies, beginning with the era in which the compensation principle and expectation damages dominated. Fuller and Perdue’s classic articles in 1936-7 and, later, the theory of efficient breach both offered important justifications for the principle. However, as economic analysis extended to incorporate a wider range of incentive and risk-bearing goals, the support for the compensation principle became increasingly frayed. Subsequently, the emergence of the incomplete contracts theory further weakened its normative significance. In practice, the cutting-edge uses of contract damages pursue several other objectives, unrelated to compensation. In particular, damages promote contracting goals by (a) providing the price for embedded options or (b) setting the stakes and thereby incentives for future litigation. Finally, the paper discusses the design of “tiered” damages within a single contract that are triggered by different contingencies. In this sense, damages and conditions act as complements as well as substitutes. In light of the complex role played by contract remedies, the essay suggests that this topic should be taught near the end rather than beginning of the first-year contracts course.