Category Archives: General

Mark Leeming, ‘Statute Law in the Law of Obligations: Dimensions of Form and Substance’

ABSTRACT This chapter analyses the ways in which statutes interact with judge-made law in the legal systems of Australia, the United Kingdom and the United States. It considered cases where statutes are treated as judge-made law, cases where judge-made law is treated as statutes, and cases where statutes and judge-made law co-exist. The different ways […]

Carney, Then, Bigby, Wiesel, Douglas and Smith, ‘Realising “Will, Preferences and Rights”: Reconciling Differences on Best Practice Support for Decision-Making?’

ABSTRACT ‘Will, preferences and rights’ is the new guiding principle for all support for or exercise of decision-making under the Convention on Rights of Persons with Disabilities, but its meaning is disputed and practice implications are poorly understood. This article explores key debates across disciplines and draws on grounded theory fieldwork findings to bring greater […]

Donald Netolitzky, ‘Organized Pseudolegal Commercial Arguments as Magic and Ceremony’

ABSTRACT This article discusses ways in which Organized Pseudolegal Commercial Arguments (OPCA) litigants use pseudolegal concepts, techniques, and procedures before the courts. The author begins by looking at where OPCA legal arguments originate, and the historical sources where these arguments find grounding, while assessing the flaws in such. A thorough analysis is then conducted into […]

‘Private Law and Public Purposes’

Steve Hedley, The Rise and Fall of Private Law Theory, 134 Law Quarterly Review 214 (2018). In one sense, contemporary private law theory offers a wide range of approaches. For example, contract law theory includes significant theories whose focus ranges across promise, consent, property, commerce, reliance, choice, and wealth maximization, just to offer a quick […]

Just Published: Five Uneasy Pieces: Essays on Law and Evolution by Jan Smits

Can the law benefit from an evolutionary perspective? This little book shows how the idea of survival of the fittest can help explain legal development and the rise and fall of legal institutions. The reader is invited to join in on a journey of discovery in which the world of Darwin is connected to the […]

Dan Priel, ‘Legal Realism and Legal Doctrine’

ABSTRACT Legal realism is widely perceived to be hostile to legal doctrine. In the familiar narrative, the realists showed that legal doctrine does not, and cannot, constrain judges from using existing legal materials to reach virtually any outcome they want. As such, doctrine only serves to hides and obfuscate what is better discussed openly. The […]

Lezelle Jacobs, ‘Legal Feminism and Insolvency Theory: A Woman’s Touch?’

ABSTRACT The impact of women’s lives and experiences on the law forms an essential part of the feminist legal movement. This article evaluates the existence of feminist ideologies in a hitherto unexplored area of the law, namely insolvency law and more specifically insolvency theory. Some main ideologies of the feminist movement are identified and contrasted […]

Arthur Ripstein, ‘Political Independence, Territorial Integrity and Private Law Analogies’

ABSTRACT Kant deploys analogies from private law in describing relations between states. I explore the relation between these analogies and the broader Kantian idea of the distinctively public nature of a rightful condition, in order to explain why states, understood as public things, stand in horizontal, private legal relations without themselves being private. I use […]

‘Arrow’s Theorem’

Kenneth Arrow’s ‘impossibility’ theorem – or ‘general possibility’ theorem, as he called it – answers a very basic question in the theory of collective decision-making. Say there are some alternatives to choose among. They could be policies, public projects, candidates in an election, distributions of income and labour requirements among the members of a society, […]

Just Published: Form and Substance in the Law of Obligations (Robertson and Goudkamp eds)

This volume explores the relationship between form and substance in the law of obligations. It builds on the rich tradition of legal thought that deploys the concepts of form and substance to inform our understanding of the common law. The essays in this collection offer multiple conceptions of form and substance and cover an array […]