Category Archives: Taxonomy

Carmine Conte, ‘From Only the ‘Bottom-up’? Legitimate Forms of Judicial Reasoning in Private Law’

Abstract: This article explores the dichotomy between ‘bottom-up’ and ‘top-down’ legal reasoning in the private law context. It considers the High Court of Australia’s recent allegations that: first, ‘top-down’ legal reasoning is illegitimate in private law judicial decision-making; secondly, any arguments adopting this reasoning structure are unacceptable, such as those deriving from the Birksian model […]

Book Review: Tort Law Defences by James Goudkamp (2013)

“This book is concerned with defences in tort law, and, in particular, with creating a taxonomy of defences in order to promote clearer thinking and more coherent legal development. It is an original and ambitious project. As James Goudkamp reminds us, no similar investigation has previously been undertaken, and the lack of earlier systematic analysis […]

Chad Pomeroy, ‘Why Is Property So Hard?’

Abstract: This paper seeks to flesh out the heterogeneity and inherent difficulty of property law and to analyze it in depth. Part I begins this examination by setting up a taxonomy for property law and then describing the heterogeneity inherent in that context and the costs associated with that variability. Real estate law has continually […]

Peter Watts, ‘Taxonomy in Private Law – Furor in Text and Subtext’

Abstract: This article starts with an overview of the debates over classification in private law that took place in the latter period of Peter Birks’s career. It does so by setting out the Birksian taxonomy and by collecting various extracts from Birks’s voluminous output, then contrasts those extracts with the views of a selection of […]

Gerald Postema, ‘Law’s System: The Necessity of System in Common Law’

Abstract: TE Holland infamously described the common law “chaos with a full index”, and critics from Bentham to Peter Birks have criticized common law for its manifest absence of system, its disorderly collection of legal categories and miscellany of odd rules. Defenders of contemporary common law celebrate its resolute anti-theoretical stance and resistance to systematization. […]

Stephanie Law, ‘Epistemological Considerations in Private Law: Exploring Taxonomical Structures in the Common Law, Civil Law and Beyond’

Abstract: This paper aims to further the classification discourse by examining the importance and function of taxonomical structures in private law. The paper begins by considering the extent to which it is possible to develop, establish and maintain a classificatory scheme that constitutes a genuine reflection of the law and more generally, the value in […]

James Goudkamp, Tort Law Defences – discount available

Since I posted about this book yesterday, I have received an e-mail from the publishers, offering a discount to readers of this blog. Message follows:   Tort Law Defences By James Goudkamp The law of torts recognises many defences to liability. While some of these defences have been explored in detail, scant attention has been […]

Just published: James Goudkamp, Tort Law Defences

“The law of torts recognises many defences to liability. While some of these defences have been explored in detail, scant attention has been given to the theoretical foundations of defences generally. In particular, no serious attempt has been made to explain how defences relate to each other or to the torts to which they pertain. […]

Joseph Lavitt, ‘Leaving Contemporary Legal Taxonomy’

Abstract: In twenty-first century American courts, dysfunctional outcomes invariably follow the formalistic application of the most salient doctrinal distinctions. Attempts by legal taxonomists to delineate the boundaries between contract and tort law are especially ineffectual. Still, courts irregularly determine the obtainable remedies for legally cognizable injuries based on the way these capricious taxonomic boundaries are […]

Dari-Mattiacci and Parisi, ‘Liability Rules: An Economic Taxonomy’

Abstract: The analysis of tort law is one of the most well-developed applications of economic methodology in the study of law. In this essay, we provide an overview of the economic approach to tort law, analyzing the effects of liability rules on care incentives. We catalogue a variety of possible tort regimes, systematically breaking down […]