Category Archives: General

Michael Foran, ‘Discrimination as an Individual Wrong’

ABSTRACT This article argues that anti-discrimination rights are individual rights to be free from wrongful treatment and do not directly advance group-based interests or prohibit group-based harm. In light of this, a number of recurring accounts of the wrong of discrimination, particularly the wrong of indirect discrimination, are unsustainable. Claims that indirect discrimination is concerned […]

Shivprasad Swaminathan, ‘Dicey and the Brick Maker: An Unresolved Tension Between the Rational and the Reasonable in Common Law Pedagogy’

ABSTRACT In his inaugural address as the Vinerian Professor of English law in 1883, Albert Venn Dicey laid down the vision for a new pedagogy for the common law to replace the ‘unaccountable’ arrangement of apprenticeship that had hitherto served the common law. The latter, he likened to ‘brick making’. At the heart of Dicey’s […]

Teilrechtsfähigkeit for Autonomous Systems: Introducing a “Halfway” Status’

“Autonomous systems are entering our everyday lives. But what are they in legal terms? Are we just looking at sophisticated objects? Or should autonomous systems be treated as legal subjects, somewhat similar to humans? In a recent research paper, I propose to implement a ‘halfway’ or ‘in-between’ status: Teilrechtsfähigkeit – partial legal capacity. The debate […]

Hanjo Hamann, ‘The German Federal Courts Dataset 1950-2019: From Paper Archives to Linked Open Data’

ABSTRACT Various reasons explain why Europe lags behind the United States in empirical legal studies. One of them is a scarcity of available data on judicial decision making, even at the highest levels of adjudication. By institutional design, civil‐law judges have lower personal profiles than their common‐law counterparts. Hence very few empirical data are available […]

‘Legal Theory Lexicon: Justice’

“The connection between law and justice is a deep one. We have ‘Halls of Justice’, ‘Justices of the Supreme Court’, and ‘the administration of justice’. We know that ‘justice’ is one of the central concepts of legal theory, but the concept of justice is also vague and ambiguous. This post provides an introductory roadmap to […]

Gary Bell, ‘The Civil Law, the Common Law, and the English Language – Challenges and Opportunities in Asia’

ABSTRACT This article addresses three questions. First, what is the effect on the civil law in Asia of young (and old) academics adopting English, the language of the common law, as a second language – rather than a civil law language, either a Continental European language (French, German etc), or another Asian civil law language […]

‘The Rule of Law’

“The ideal of the rule of law can be traced back at least as far as Aristotle and is deeply embedded in the public political cultures of most modern democratic societies. For example, the Universal Declaration of Human Rights of 1948 declared that …” (more) [Lawrence Solum, Legal Theory Blog, 28 July]

Luigi Alberto Franzoni, ‘Legal Change in the Face of Risk-Averse Subjects: A Generalization of the Theory’

ABSTRACT This study investigates the optimal nature of lawmaking under uncertainty. I focus on a case in which a harmful activity will be subjected to some regulatory measures (a standard, exposure to liability, or a corrective tax). The benefits and costs of precaution are ex ante uncertain, and this places a risk burden on both […]

Bravo-Hurtado and Álvaro, ‘Explaining Difference in the Quantity of Cases Heard by Courts of Last Resort’

ABSTRACT While civil law courts of last resort – eg, cassation courts in France, Italy, and Chile – review up to 90% of appealed cases, common law courts of last resort – eg, supreme courts of the United States, United Kingdom, and Canada – hear as few as 1% of the same petitions. In this […]

‘How Shall We Regulate Autonomous Machines?’

“Machines powered by artificial intelligence (AI) are on the rise. In many use cases, their performance today already exceeds human capabilities. Building on a prior OBLB post, I explore fundamental regulatory issues related to such ‘autonomous machines’ in a recent essay. I adopt an analytical perspective that highlights the importance of what I call the […]