Category Archives: Law and Economics

Faure, Visscher and Weber, ‘Liability for Unknown Risks: A Law and Economics Perspective’

Abstract: In the law and economics literature liability is generally regarded as an instrument which provides potential tortfeasors with incentives for optimal care taking. The question, however, arises whether liability can still provide those incentives when risks are unknown. That is the central question that is addressed in this contribution. One may, furthermore, have to […]

Daniele Bertolini, ‘On the Spontaneous Emergence of Private Law’

Abstract: This article provides an explanatory framework of the spontaneous lawmaking (‘SL’) process in the area of private law. To illuminate the process of the spontaneous emergence of private law, this paper focuses on three issues: (1) the conditions under which SL is likely to generate efficient norms, (2) the mechanisms that explain the emergence […]

David Campbell, ‘Adam Smith and the Social Foundation of Agreement: Walford v Miles as a Relational Contract’

Abstract: That the reception in subsequent case law of Leggatt J’s outstanding discussion of good faith in Yam Seng Pte Ltd v International Trade Corporation Ltd has been disappointing demonstrates the continuing failure to appreciate the normative constitution of economic exchange and the law of contract. This paper re-examines the concept of economic exchange which […]

Cass Sunstein, ‘Misconceptions About Nudges’

Abstract: Some people believe that nudges are an insult to human agency; that nudges are based on excessive trust in government; that nudges are covert; that nudges are manipulative; that nudges exploit behavioral biases; that nudges depend on a belief that human beings are irrational; and that nudges work only at the margins and cannot […]

Beuve and Chever, ‘Quality of Outsourced Services, Opportunism and Contract Design’

Abstract: This paper estimates the impact of contract design on the enforceability of quality in outsourced public contracts. Using panel data from 102 cleaning contracts, our results suggest that quality enforcement depends highly on the ex ante contracting process. Such findings are consistent with recent theoretical contributions which consider that the verifiability of agents’ actions […]

Diogo and Britto, ‘Distributive Justice, Public Policies and the Comparison of Legal Rules: Quantify the “Price of Equity”’

Abstract: This paper proposes a quantitative approach to study two methodological problems arising when a costly redistribution of resources is implemented through public policies or legal rules: (a) aggregating individual into social preferences and (b) choosing the object of maximization. We consider a redistribution intervention that reduces inequality but diminishes total wealth and we specify […]

Liyang Hou, ‘Superior Bargaining Power: The Good, the Bad and the Ugly’

Abstract: Superior bargaining power demonstrates a domain where practice precedes theory. Although there have been legal practice on superior bargaining power to some extent across the globe for more than eight decades, debates have never rested on whether and how superior bargaining power should be regulated. In view of such a gap, this article for […]

Ignacio Cofone, ‘The Dynamic Effect of Information Privacy Law’

Abstract: Discussions of information privacy typically rely on the idea that there is a tradeoff between privacy and availability of information. But privacy, under some circumstances, leads to the creation of more information. In this article, I identify such circumstances by exploring the ex-ante incentives created by entitlements to personal data and evaluating the long-term […]

Victor Goldberg, ‘The MacPhersonHenningsen Puzzle’

Abstract: In the landmark case of MacPherson v Buick, an automobile company was held liable for negligence notwithstanding a lack of privity with the injured driver. Four decades later, in Henningsen v Bloomfield Motors, the court held unconscionable the standard automobile company warranty which limited its responsibility to repair and replacement, even in a case […]

Brian Fitzpatrick, ‘Do Class Actions Deter Wrongdoing?’

Abstract: I and other scholars have long pointed to the deterrence virtue of the class action to justify its existence even when it was doubtful that it furthered its other purposes, such as compensation or litigation efficiency. In recent years, critics have argued that class actions may not offer even this virtue. Some argue that […]