Monthly Archives: January, 2012

Adam Rigoni, ‘A Sin of Admission: Why Section 62 Should Have Been Omitted from the Restatement (Third) of Restitution & Unjust Enrichment’

“In this Article I first argue that Section 62 of the Restatement (Third) of Restitution & Unjust Enrichment sits in tension with the principles expounded in the rest of the work. I then try to show that this tension is mostly unnecessary because the majority of the cases covered by Section 62 could be either […]

Daniel Klerman, ‘Product Liability and Rational Consumer Ignorance’

Abstract: The cost of reading and understanding voluntary warranties provides a new justification for mandatory products liability. If consumers could cheaply read and understand warranties, product liability law might be unnecessary, because, if there were no product liability, manufacturers would signal that their goods were safe by voluntarily providing warranties which mimicked (or improved upon) […]

Choi and Triantis, ‘How Bargaining Power Affects Non-Price Terms in Contracts’

Abstract: While practitioners and commentators in industry invoke bargaining power to explain patterns in non-price contract terms, conventional law and economics scholarship contends that bargaining power should affect only the price and not other contract terms. This paper looks at the impact of bargaining power on non-price terms, such as warranties, termination rights and dispute […]

Quandaries of Civil Recourse: Calnan Replies to Goldberg & Zipursky

“Last month, Alan Calnan posed four quandaries for John Goldberg’s and Ben Zipursky’s civil recourse theory. John and Ben responded last week. Alan now replies: ‘First, I would like to thank the editors of TortsProf blog for hosting this discussion …’” Alan Calnan, Quandaries of Civil Recourse: Calnan Replies to Goldberg & Zipursky. TortsProf Blog, […]

Ganuza, Gomez-Pomar, and Robles, ‘Product Liability versus Reputation’

Abstract: The Tort system and especially Product Liability is a socially costly tool to provide manufacturers with incentives for safety. Recently, it has been argued that market reputation could, to a significant extent, constitute a cheaper alternative to Product Liability. Our paper departs from the sometimes overlooked fact that market reputation is not for free, […]

Janke and Licari, ‘Enforcing Punitive Damage Awards in France after Fountaine Pajot

Abstract: In a landmark ruling, the Cour de cassation held that ‘an award of punitive damages is not, per se, contrary to public policy,’ but that ‘it is otherwise when the amount awarded is disproportionate with regard to the damage sustained and the debtor’s breach of his contractual obligation.’ Schlenzka & Langhorne v. Fountaine Pajot, […]

Russell Korobkin, ‘The “Borat” Problem in Contract Law: Fraud, Assent, and Standard Forms’

Abstract: Two parties reach an oral agreement. The first then presents a standard-form contract, which the second signs without reading, or without reading carefully. When the second party later objects that the first did not perform according to the oral representations, the first party points out that the signed document includes different terms or disclaims […]

Jan Smits, ‘A Radical View of Legal Pluralism’

Abstract: Law is increasingly pluralist, meaning that different claims to legal authority exist at the same time on the same territory. This pluralism raises important questions in the field of (European) private law. The main question discussed in this contribution is a normative one: to what extent can legal pluralism be accepted, or should it […]

Janice Richardson, ‘The concept of harm in actions for wrongful birth: Nature and pre-modern views of women’

Abstract: Both judicial and academic analysis of so-called ‘wrongful birth’ cases, in which there is a negligence claim arising from the birth of a child that has resulted from negligent sterilisation or advice, can shed light upon prevailing attitudes to women. In particular, some judgements still reflect ‘pre-modern’ beliefs that motherhood is women’s natural fate […]

W Kip Viscusi, ‘Empirical Analysis of Tort Damages’

Abstract: This article examines the procedures for determining damages in tort cases and assesses the empirical characteristics of these damages. Damages for economic loss involve noncontroversial economic concepts that seek to make the victim whole from a financial standpoint. Nevertheless, there is often substantial disagreement over issues such as the selection of the discount rate. […]