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Paradine, WTC, and the beauty of property and contract

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7 Responses

  1. I’m not sure that Paradine v. Jane will bear the weight you’d like to place on it. The ruthless Prince Rupert was actually a nephew of King Charles I, and the occupation at issue in the case involved a Royalist army. It was only possible for the legal system to describe Rupert as an “enemy” in hindsight, once Parliament had taken control and imprisoned Charles. There’s a kind of willful blindness to politics and government in the case; it stands for a set of orderly legal principles within an overall framework that pushed at the meaningful limits of the rule of law. Note, for example, that poor Jane had no recourse against his actual disposessor, nor did either King or Parliament take responsibility for compensating him.

  2. Mark Edwards says:

    I know the history. I think Prince Rupert’s reputation among the rebels was one of singular ruthlessness. The picture of him embedded in the post depicts his penchant for burning cities and killing civilians. He later went on to a career as a pirate, until the Royalists regained power.

    I think blindness to politics and government is, unfortunately for Jane, a strength of the decision. The parties are free to bargain among themselves and will be held to the terms of the bargain.

    More importantly, Paradine, in its small way, helped set the stage for the types of arrangements that helped absorb the blow of September 11th.

  3. A.J. Sutter says:

    As the Talmud says, let your ears hear what your mouth is saying. The aspect of law that “took Al Qaeda’s worst blow and shook it off” is the law of private property. When it comes to the law of human rights, though, you yourself note that this took a very big hit. Wouldn’t it have been more of a triumph of our legal system if these priorities had been reversed? It is heart-warming when insurers are forced to pay for the risks they insured, but did we really “shake off the blow” when we resorted to the dubious or even brutal measures you describe in your last paragraph? The parallel to Paradine may be nice to mention in class, but in drawing your larger lessons from the WTC case you’re foregrounding the wrong story.

  4. By “arrangements that helped absorb the blow,” you mean things like the Victim Compensation Fund?

  5. Lori Ringhand says:

    Name names! I want to know who this allegedly “stern professor” is who taught you property. I’m not buying it.

  6. Mark Edwards says:

    James — No, I was thinking of the insurance and re-insurance contracts the net lessee (Silverstein) obtained, knowing that he was liable for the costs of restoration without rent abatement. When the parties know where they stand, because they are free to contract to allocate risk and will be held to the terms of the contract, they are able to prepare. The web of insurance and reinsurance acted like a net the dispesed the economic shock of the attacks. Ultimately, in terms of economics — and clearly not in terms of human life — the planes hitting the towers were like rocks hitting a pond. The effect rippled out, was absorbed, and the system’s equilibrium was not disturbed.

    Lori, my former classmate — ha ha, I think you can guess who the stern professor was. At least, he seemed stern to my 1L self (I later discovered he was a very, very nice man). But at the time, he had a very intimidating moustache, and that alone was enough to scare the bejeesus out of me.

  7. Mark Edwards says:

    For “the dispesed” please read “that dispersed.” All of a sudden I’m writing like the judge in Paradine.

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