Monthly Archives: November, 2011

Hulst and Akkermans, ‘Can Money Symbolize Acknowledgement? How Victims’ Relatives Perceive Monetary Awards for Their Emotional Harm’

Abstract: Legal systems differ markedly on how they treat the emotional harm suffered by close family members of crime or accident victims. This paper reports the results of two empirical studies examining how citizens whose child, partner, or parent was killed or seriously injured as a result of violent crime or tort (secondary victims) perceive […]

Brian Bix, ‘Theories of Contract Law and Enforcing Promissory Morality: Comments on Charles Fried’

Abstract: This article considers two important themes connected with Charles Fried’s great work, “Contract as Promise”: first, the nature of the theoretical claims in that book; and second, the question of whether contract law, especially when this area is equated with the enforcement of promises, is in tension with John Stuart Mill’s “Harm Principle.” While […]

Marc Rodwin, ‘French Medical Malpractice Law and Policy through American Eyes: What It Reflects about Public and Private Aspects of American Law’

Abstract: This article seeks to illuminate medical malpractice law and policy in the United States as well as in France. It analyzes a major reform that France began in 2002, and situates it in relation to American law and policy. I will briefly describe these reforms and then make observations about the American and French […]

Gomez and Ganuza, ‘How to build European private law: an economic analysis of the lawmaking and harmonization dimensions in European private law’

Abstract: In the process of building a European Private Law, the lawmaking and harmonization dimensions—the modes of harmonization and even more, the scope and reach of the harmonizing effect of the European rules- appear as crucial issues. We show how the harmonization strategy is as important a question as whether we should have European Private […]

Stefan Grundmann, ‘The Future of Contract Law’

Abstract: This contribution starts out with the fundamental changes society and law have undergone since 200 years ago with the ‘discovery of consensus’ and asks the question whether at the turn of our millennium, we are living similarly in a period of fundamental change. In this context, the contribution asks the question about the future […]

Marshall Shapo, ‘An Essay on Torts: States of Argument’

Abstract: This essay summarizes high points in torts scholarship and case law over a period of two generations, highlighting the “states of argument” that have characterized tort law over that period. It intertwines doctrine and policy. Its doctrinal features include the traditional spectrum of tort liability, the duty question, problems of proof, and the relative […]

Barbara Fried, ‘The Limits of a Nonconsequentialist Approach to Torts’

Abstract: The nonconsequentialist revival in tort theory has focused almost exclusively on one issue: showing that the rules governing compensation for ‘wrongful’ acts reflect corrective justice rather than welfarist norms. The literature is either silent on what makes an act wrongful in the first place or suggests criteria that seem indistinguishable from some version of […]

Alani Golanski, ‘Paradigm Shifts in Products Liability and Negligence’

Abstract: Three interrelated paradigm shifts are currently at play within products liability law. The first results from the tort reform movement’s heated efforts at dramatically restricting compensatory rights and options. The second arises from the countervailing effort to preserve products accountability by relinquishing no-fault strict-liability theories. The article’s resulting treatment of negligence introduces the third […]

Vanessa Mak, ‘Full Harmonization in European Private Law: A Two-Track Concept’

Abstract: This article seeks to elaborate a new understanding of full harmonization in European private law as a two-track concept. The Court of Justice of the European Union (CJEU) applies it in two different ways, namely in a ‘result-oriented’ or in a ‘basis of liability’ manner. Connecting them to private law theory, these distinctly different […]

Nestor Davidson, ‘Property’s Morale’

Abstract: A foundational argument long invoked to justify stable property rights is that property law must protect settled expectations. Respect for expectations unites otherwise disparate strands of property theory focused on ex ante incentives, individual identity, and community. It also privileges resistance to legal transitions that transgress reliance interests. When changes in law unsettle expectations, […]