Category Archives: General

‘Legal Theory Lexicon: It Takes A Theory To Beat A Theory’

“‘It takes a theory to beat a theory’ – this is surely one of the top ten all-time comments uttered by law professors to one another in those ritual interactions that are called ‘faculty workshops’ or ‘colloquia’. The first instance of the comment that I can find in the legal literature appears in an article […]

Kevin Tobia, ‘Law and the Cognitive Science of Ordinary Concepts’

ABSTRACT This chapter introduces the ‘folk law thesis’, the claim that ordinary concepts are at the heart of central legal concepts. It presents recent empirical work suggesting that a number of subtle and surprising features of ordinary concepts are also shared by the corresponding legal concept – including features of intent, knowledge, consent, reasonableness, and […]

Lionel Smith, ‘Sources of Private Rights’

ABSTRACT Much has been written in both the common law and the civil law about the ‘sources’ of rights or of obligations. Jurists have attempted to classify and organize these sources as a way of shedding analytical light on the different kinds of rights that exist in private law. Building on recent scholarship in Quebec […]

Wagner and Walker, ‘Incomprehensible!: A Study of How Our Legal System Encourages Incomprehensibility, Why It Matters, and What We Can Do About It’

ABSTRACT Drawing together evidence from work in administrative law, consumer contracts, financial disclosures, patents, chemical regulation, and legislative process, this book isolates a foundational flaw in the design of a number of legal processes. Each of these programs requires transparency and equal access to information, in large part because the regulated parties or other sophisticated […]

Anuj Desai, ‘The Dilemma of Interstatutory Interpretation’

ABSTRACT Courts engage in interstatutory cross-referencing all the time, relying on one statute to help interpret another. Yet, neither courts nor scholars have ever had a satisfactory theory for determining when it is appropriate. Is it okay to rely on any other statute as an interpretive aid? Or, are there limits to the practice? If […]

David McIlroy, Review of Nicholas McBride, The Humanity of Private Law – Part I: Explanation

The Humanity of Private Law – Part I: Explanation by Nicholas J McBride. Oxford: Hart Publishing, 2019, 272 pp (£80.00 hardback). ISBN: 978-1-50-991195-0. The first issue of the Modern Law Review in 1937 carried an article by Richard O’Sullivan KC entitled ‘A scale of values in the common law’. In his corpus of writings, O’Sullivan […]

Call for Papers: Intermediaries in Commercial Law: UCL Faculty of Laws, 10-11 June 2021

Intermediaries play an important role in many aspects of commercial law. Yet there has been little focussed attention upon intermediaries as a crucial category of actors. The aim of this conference is to consider current issues concerning intermediaries from a number of different angles, adopting a range of methodological approaches. The conference will consider the […]

Robert Mullins, ‘Review: Ripstein, Arthur, Private Wrongs

Arthur Ripstein, Private Wrongs, Cambridge, MA: Harvard University Press, 2016, 313 pp, hb $49.95. In The Concept of Law (Oxford: OUP, 1963) HLA Hart drew attention to the ‘diverse ways in which the law is used to control, to guide, and to plan life out of court’ (ibid, 39). Where legal realists like Holmes saw […]

Leandro Martins Zanitelli, ‘Private Law, Double Distortion Argument, and Property-Owning Democracy’

ABSTRACT The article discusses an argument against the use of private law for distributive purposes, Louis Kaplow and Steven Shavell’s double distortion argument (Kaplow and Shavell, 1994). It is sought to ascertain whether one of the theses on which this argument rests, the thesis of equivalence, can be confirmed in the light of John Rawls’s […]

‘Legal Theory Lexicon: Default Rules and Completeness’

“At some point in the introductory class in contract law, students are likely to encounter a very powerful idea – the distinction between ‘default rules’ and ‘mandatory rules’. The basic distinction is easy to grasp. Some rules of contract law supply default terms that are subject to contractual override; other rules of contract law are […]