Monthly Archives: October, 2011

Jeffrey Helmreich, ‘Does “Sorry” Incriminate? Evidence, Harm and the Meaning of Apologies’

Abstract: Apology has proven a dramatically effective means of resolving conflict and preventing litigation. Still, many injurers, particularly physicians, withhold apologies because they have long been used as evidence of liability. Recently, a majority of states in the U.S. have passed “Apology Laws” designed to lift this disincentive, by shielding apologies from evidentiary use. However, […]

James Goudkamp, ‘Insanity as a Tort Defence’

Abstract: Unlike the criminal law, tort law does not recognize insanity as an answer to liability. The fact that a defendant was insane at the time of his impugned conduct is essentially ignored by tort law’s liability rules. It will be argued that this situation is unsatisfactory. A person should not incur liability in tort […]

Grigoleit and Tomasic, ‘Acquis Principles’

Abstract: The Acquis Principles (ACQP) are a systematic compilation of model rules and principles derived from the existing EU private law. They have been drafted by a group of European scholars (Research Group on the Existing EC Private Law, the so-called Acquis Group). Their purpose is according to Art 1:101(2) ACQP to serve as a […]

Hans Grigoleit, ‘Mandatory Law: Basic Features of the Regulation in European Private Law’

Abstract: The EU directives concerning private law predominantly aim at the protection of consumers (consumers and consumer protection law). Consequently (cf mandatory law (fundamental regulatory principles) at 2. a)), they have a mandatory effect in favour of the consumer (“unilaterally mandatory law”). This applies to the most important instruments of consumer protection, i.e. rights of […]

Hans Grigoleit, ‘Mandatory Law: Fundamental Principles’

Abstract: The terms mandatory law (ius cogens) and non-mandatory law (ius dispositivum) refer to the relationship between a rule of private law and the agreement by the parties. While non-mandatory rules can be set aside by contracual agreement (and sometimes also by a unilateral act of one party), mandatory rules do not allow for derogation […]

Martijn Hesselink, ‘How to Opt into the Common European Sales Law? Brief Comments on the Commission’s Proposal for a Regulation’

Abstract: Unlike the actual text for the proposed Common European Sales Law (CESL), which is based on extensive preparatory work by academics, the regime for opting into the instrument, which is set out in the main text of the proposed regulation, is entirely of the European Commission’s own making. The approach adopted by the Commission […]

Mark Geistfeld, ‘Due Process and the Deterrence Rationale for Punitive Damages’

Abstract: Courts in the U.S. have widely recognized that punitive damages can be justified on grounds of either deterrence or retribution. As conventionally justified, however, the deterrence rationale for punitive damages apparently violates the federal constitutional requirement of due process for reasons that are likely to be of concern for any jurisdiction that justifies punitive […]

Mark Geistfeld, ‘The Principle of Misalignment: Duty, Damages, and the Nature of Tort Liability’

Abstract: When a tort rule is fully aligned, harms are valued equally across the elements. Because the valuation of harm within duty equals the valuation within the damages remedy, a fully aligned rule gives dutyholders the option to fully comply with the duty with respect to any harm by paying (the equally valued) compensatory damages […]

David Howarth, ‘Libel: Its Purpose and Reform’

Abstract: Discussion of libel often fails to define defamation law’s purpose and thus properly to assess its value. This article argues that defamation’s purpose relates to fundamental human interests in sociality, directly linked to important aspects of human health and well‐being. Protecting such interests is arguably required by the right to private life under ECHR […]

Avihay Dorfman, ‘Reasonable Care: Equality as Objectivity’

Abstract: The most compelling defense of the standard of reasonable care in negligence law casts itself in terms of equality. This commitment to equality may paradoxically turn out to be flatly inegalitarian. This is because it discriminates against the less capable through ignoring their deficient capabilities (and so against their chances of meeting the standard […]