Category Archives: Public policy
Nathan Oman, ‘Markets as a Moral Foundation for Contract Law’
Abstract: Contract law is pre-eminently a law of markets, yet markets get little attention in contract law theory, especially in what might be labeled moral theories of contract law. This article advances a simple thesis: Contract law’s primary goal should be to sustain markets, which are a normatively desirable practice providing a moral foundation for [...]
Martin Begleiter, ‘Taming the “Unruly Horse” of Public Policy in Wills and Trusts’
Abstract: Issues involving “public policy” in wills and trusts (outside of cases involving the Rule Against Perpetuities) do not often arise. Most involve restraints on marriage and conditions encouraging divorce. Since such questions arise infrequently, courts usually were satisfied to state the rules in the area and ignore examination of the tests for and sources [...]
Anthony Sebok, ‘Betting on Tort Suits after the Event: From Champerty to Insurance’
Abstract: Litigation financing is investment by a stranger into a lawsuit in which she has no interest other than the investment. The common law prohibitions on champerty and maintenance rendered litigation finance illegal for centuries, but today it is permissible in England, Europe, Australia and many U.S. jurisdictions. This article, which was prepared for a [...]
Andrew Robertson, ‘Policy-based reasoning in duty of care cases’
Abstract: This paper seeks to develop a deeper understanding of the role of policy-based reasoning in the determination of duty of care questions. In order to do this, the first part explores the distinction between considerations of interpersonal justice and considerations of community welfare in the determination of duty questions. While imperfect, the distinction illuminates [...]
Craig Rotherham, ‘Policy and Proprietary Remedies: Are We All Formalists Now?’
Abstract: The most fundamental source of confusion in the law of proprietary remedies results from a disagreement as to whether it is legitimate to try to explain, justify or develop proprietary remedies by reference to policy arguments that focus on the effects such relief have in insolvency. The practice of explaining proprietary relief on this [...]
David Friedman, ‘Bringing Order to Contracts Against Public Policy’
Abstract: In 1821, Judge Burrough famously described the public-policy defense in contract law as a “very unruly horse.” To test this proposition, this article presents the first systematic content analysis of public-policy defense case law. The sparse previous literature and the commentaries on the defense tend to accept the notion that this area of contract [...]
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