Monthly Archives: January, 2012

Frank Cross, ‘Tort Law and the American Economy’

“… I examine the effects of tort law using indices created by two pro-defendant organizations, the United States Chamber of Commerce and the Pacific Research Institute. While both groups believe that tort law hampers the economy, there is no reason to think these organizations should have a bias for or against particular states in their […]

Gary Low, ‘A Numbers Game – The Legal Basis for an Optional Instrument in European Contract Law’

Abstract: Despite the fact that it is an optional instrument, the proposed Common European Sales Law (CESL) is based on Art 114 TFEU. This article considers whether the measure approximates the contract laws of Member States, such that the continued use of Art 114 TFEU is justifiable. One possibility, using the lens of regulatory competition, […]

Catherine Sharkey, ‘The Vicissitudes of Tort: A Response to Professors Rabin, Sebok & Zipursky’

Abstract: This response essay probes three themes that tie together three articles submitted for a tort symposium on “The Limits of Predictability and the Value of Uncertainty.” First, I explore the use of unpredictability as a code word for an assault on tort doctrine in response to an out-of-control tort system. In his historical account […]

Catherine Sharkey, ‘Economic Analysis of Punitive Damages: Theory, Empirics, and Doctrine’

Abstract: This chapter — to be included in Research Handbook on the Economics of Torts (Arlen ed., Kluwer, forthcoming 2012) — assesses economic rationales for punitive damages in light of contemporary empirics and doctrine. The primary economic rationale for supra-compensatory damages is optimal deterrence (or loss internalization): when compensatory damages alone will not induce an […]

Barak Richman, ‘Contracts Meet Henry Ford’

Abstract: Legal scholars and legal educators view contracts as a welfare-maximizing (or optimal risk-allocating) device for two or more parties. Because we cling to this principal-driven paradigm, we think of lawyers only as the proverbial “transaction cost engineers,” the loyal agents of parties to a transaction. And whenever we observe contracts that appear to be […]

Henry Smith, ‘On the Economy of Concepts in Property’

Abstract: Legal concepts, like concepts generally, help economize on information. Conventional wisdom is correct to associate conceptualism with formalism, but misunderstands the role concepts play in law. Commentators from the Legal Realists onward have paid insufficient attention to the distinction between intensions – functions from worlds to categories – and extensions – the categories themselves. […]

Thomas Gallanis, ‘The New Direction of American Trust Law’

Abstract: This article is a revised version of the Shirley A. Webster Lecture in Wealth Transfer Law given by the author at the University of Iowa. The article explores the central tension in the law of trusts between the rights and interests of the settlor and the rights and interests of the beneficiaries. In navigating […]

David DePianto, ‘Health, Happiness and Tort Damages – A Look at the Broader Empirical Picture’

Abstract: What does the empirical study of well-being, or happiness research, imply for damage awards in tort? The current consensus on the issue is that, in light of adaptation, current damage awards are likely inflated from a hedonic perspective. If juries properly accounted for the remarkable ability of individuals to adapt to their circumstances, the […]

Eugenio Battesini, ‘Negligence, Hand Formula, and Compensation’

Abstract: The Hand formula is recognized as an important criterion for fault assessment. Landes and Posner draw attention to the fact that the importance of the Hand formula goes beyond the area of culpability, qualifying it as an algorithm which can be employed for deciding tort questions generally. One of the main difficulties in legal […]

Candace Saari Kovacic-Fleischer, ‘Cohabitation and the Restatement (Third) of Restitution & Unjust Enrichment’

Abstract: The Restatement (Third) of Restitution & Unjust Enrichment clarified and modernized a field that had become muddled since the publication of the Restatement (First) in 1937. One area of modernization relates to the changes in law towards women, particularly changes in law toward female cohabitants. Published in 2011, the Restatement (Third) added a new […]