Monthly Archives: February, 2012

Nicole Kornet, ‘The Common European Sales Law and the CISG – Complicating or Simplifying the Legal Environment?’

Abstract: Businesses would undoubtedly prefer a legal environment with less complexity. In the European Commission’s view, the legal diversity resulting from the 27 different national contract laws of the Member States creates unnecessary legal complexity and constitutes an impediment to the proper functioning of the internal market. While existing European contract law instruments mainly focus […]

Christopher Newman, ‘A License is Not a “Contract Not to Sue”: Disentangling Property and Contract in the Law of Copyright Licenses’

Abstract: The assertion that a “license” is simply a “contract not to sue” has become a commonplace in both copyright and patent law. I argue that this notion is conceptually flawed, and has become a straightjacket channeling juristic reasoning into unproductive channels. At root, a license is not a contract, but a form of property […]

Tom Bell, ‘Graduated Consent in Contract and Tort Law: Toward a Theory of Justification’

Abstract: We often speak of consent in binary terms, boiling it down to ‘yes’ or ‘no.’ In truth, however, consent varies by degrees. We tend to afford expressly consensual transactions more respect than transactions backed by only implied consent, for instance, which we in turn regard as more meaningful than transactions justified by merely hypothetical […]

Roger Shiner, ‘Causation, Responsibility and Metaphysics’

Abstract: This article is an extended review of Michael Moore’s recent book Causation and Responsibility. In the first part of the article I summarize the book: I present it as an important contribution to our understanding of how the law now does treat, and how from a normative perspective it really should treat, the significance […]

Jerrold Long, ‘Waiting for Hohfeld: Property Rights, Property Privileges, and the Physical Consequences of Word Choice’

Abstract: An important part of our institutional and cultural history is our understanding of a system of property interests. The most common trajectory of land-use regulation (or the lack thereof) appears consistent with a property meta-narrative that informs multiple academic disciplines and levels of human interaction. This meta-narrative suggests that all land-use decisions begin with […]

Dov Waisman, ‘Negligence, Responsibility, and the Clumsy Samaritan: Is There a Fairness Rationale for the Good Samaritan Immunity?’

Abstract: The Good Samaritan immunity has been roundly criticized for failing in its stated goal of encouraging physicians and laypersons to volunteer assistance in emergencies. Yet in the half century since its inception, the immunity has been adopted in one form or another by all fifty states and shows no sign of disappearing any time […]

Nancy Moore, ‘Intent and Consent in the Tort of Battery: Confusion and Controversy’

Abstract: “…. This article demonstrates that the current confusion and controversy over battery law doctrine is far more extensive than even these recent torts scholars have demonstrated. It extends beyond the element of intent and includes uncertainty concerning the role of the plaintiff’s lack of actual or apparent consent – that is, whether consent is […]

Darley, Solan, Kugler and Sanders, ‘Doing Wrong Without Creating Harm’

Introduction: When one person negligently brings harm to another, the injured party generally can seek compensation under tort law. But what about cases in which, by another’s careless actions, a person is put in the path of harm but by chance no harm ensues? Since no harm results, the actor escapes the obligation of paying […]

Tamar Frankel, ‘Towards Universal Fiduciary Principles’

Abstract: This Article focuses on unifying fiduciary law in Civil Law and the Common Law systems. The problems that fiduciary law addresses are similar throughout history and in all societies. However, the legal systems which address these problems differ. While in the Common Law fiduciary law is founded on property law, in the Civil Law […]

Stephen Smith, ‘Why Courts Make Orders (and What this Tells Us About Damages)’

Abstract: The rules governing the availability and content of court orders are well-known, but orders themselves are little studied. Focusing on final orders made in private litigation (eg, to pay a sum of money, to give up possession of land), I argue that orders are fundamentally commands. Unlike rules (which purport to provide moral guidance) […]