Category Archives: General

Peter Jaffey, ‘Two Ways to Understand the Common Law’

Abstract I distinguish between two ways of understanding the effect of a decision as a precedent in the common law, which I refer to as the individual rule approach and the holistic approach. I consider the different versions of the common law that they would be expected to give rise to, which approach is more […]

Dan Priel, ‘Conceptions of Authority and the Anglo-American Common Law Divide’

Abstract This Article seeks to explain the puzzle of the divergence of American law from the rest of the common law world through the lens of legal theory. I argue that there are four competing ideal-type theories of the authority of the common law: reason, practice, custom, and will. The reason view explains the authority […]

Julia Lee, ‘Money Norms’

Abstract Money norms present a fundamental contradiction. Norms embody the social sphere, a system of internalized values, unwritten rules, and shared expectations that informally govern human behavior. Money, on the other hand, evokes the economic sphere of markets, prices, and incentives. Existing legal scholarship keeps the two spheres distinct. Money is assumed to operate as […]

R George Wright, ‘Objective and Subjective Tests in the Law’

Abstract Across many subject areas, the law commonly attempts to distinguish between objective and subjective tests, and to assess the merits of objective as opposed to subjective legal tests. This Article argues that all such efforts are fundamentally incoherent and ultimately futile in practice. As demonstrated below, what the law takes to be objective in […]

Christopher Essert, ‘Thinking Like a Private Lawyer’

Abstract In this review essay of their books, Private Wrongs, Corrective Justice, and The Idea of Private Law, I discuss some aspects of the approach to private law (and, in particular, tort law) taken by Arthur Ripstein and Ernest Weinrib. Among the elements of their view that I highlight are: the role of a ‘form […]

Trevor Allan, ‘Principle, Practice, and Precedent: Vindicating Justice, According to Law’

Abstract The idea of justice according to law is exemplified by common law thought, in which principle and precedent are interlocked and interdependent. The law is constituted neither by its socially authoritative sources, regarded as social fact, nor by moral judgment about their effects. It is a moral construction of legal practice, interpreting its various […]

‘Algorithmic Identification of Property Law Families’

“In the most recent Private Law Workshop, Yun-Chien Chang discussed his ongoing and very interesting effort (with Nuno Garoupa and Martin Wells) to use machine learning techniques to classify legal systems into families – groupings whose members are similar to each other, but relatively distinct from those in other groups …” (more) [Erik Hovenkamp, New […]

Sean Fleming, ‘Moral agents and legal persons: the ethics and the law of state responsibility’

Abstract Why, if at all, does it make sense to assign some responsibilities to states rather than to individuals? There are two contemporary answers. According to the agential theory, states can be held responsible because they are moral agents, much like human beings. According to the functional theory, states can be held responsible because they […]

Andrew Verstein, ‘Enterprise Without Entities’

Abstract Scholars and practicing lawyers alike consider legal entities to be essential. Who can imagine running a large business without using a business organization, such as a corporation or partnership? This Article challenges conventional wisdom by showing that vast enterprises – with millions of customers paying trillions of dollars – often operate without any meaningful […]

Marten and McLay, ‘Should New Zealand Shirk its Obligations? A Critical Perspective on Private Law Scholarship’

Abstract This article concerns the role of the private law scholar in New Zealand, and how such scholars use their skills to improve the law. It argues that while an obligations scholar’s preference may be to engage with the courts and other academics in their scholarly activities, a focus on statutory reform better suits New […]