Monthly Archives: June, 2012

Chantal Mak, ‘Unweaving the CESL: Legal-Economic Reason and Institutional Imagination in European Contract Law’

Abstract: From a law-and-economics perspective, the European Commission’s proposal for the introduction of an optional Common European Sales Law (CESL) has been criticized for over-regulating consumer sales law in Europe and for being likely to yield more costs than benefits. In defense of CESL, it is submitted here that its optional nature may mitigate the […]

Grace and Leverty, ‘How Tort Reform Affects Insurance Markets’

Abstract: The impact of a law depends on both its current legal status and expectations about its future constitutionality. We investigate the effect of tort reform by segmenting reforms into those that are eventually declared unconstitutional (temporary) and those that are unchallenged or upheld (permanent). We find permanent tort reforms lower medical malpractice insurance losses […]

Chris Willett, ‘General Clauses and the Competing Ethics of European Consumer Law in the UK’

Abstract: EU ‘general clauses’ on fairness offer significant potential for improved consumer protection. However, the Supreme Court has interpreted the unfair terms general clause and a related provision by reference to an underlying ethic of self interest and self reliance’; and the same approach is possible under the unfair practices general clauses. This is a […]

Alan Calnan, ‘The Distorted Reality of Civil Recourse Theory’

Abstract: This article provides an alternative critique of civil recourse theory, which describes Torts as a scheme of private rights for the redress of legal wrongs and rejects as insignificant ‘pure’ strict liability and all doctrines and concepts shaped solely by instrumental concerns. Previous detractors have challenged the theory’s conception of duty or questioned its […]

Monu Bedi, ‘Contract Breaches and the Criminal/Civil Divide: An Inter-Common Law Analysis’

Abstract: Scholars have long debated why certain common law breaches in American jurisprudence receive criminal punishment (imprisonment) while others only receive civil sanctions (monetary damages). Scholars like Richard Posner and Guido Calabresi/A Douglas Melamed have used economic-based models and the notion of efficiency to explain why tort breaches only receive civil sanctions but crimes receive […]

Goldberg and Zipursky, ‘Rights and Responsibility in the Law of Torts’

Abstract: An adequate understanding of tort law requires distinguishing four senses in which ‘rights’ figure in tort. First and most obviously, tort law imposes duties on actors to refrain from injuring others that are correlative to rights not to be injured in the ways proscribed by tort law. Second, tort law confers on one who […]

Micklitz and Patterson, ‘From the Nation State to the Market: The evolution of EU private law’

Abstract: The State exists to deliver security and welfare to citizens. One of the principal functions of the State is to enhance welfare through the production of legal regimes. Law contributes to welfare in many ways, one of which is in its contacts with markets. In this chapter, we trace the evolution of the role […]

Sean Williams, ‘Lost Life and Life Projects’

Abstract: This Article provides the first analysis of wrongful death damages from the perspective of individual justice accounts of tort law. There is a widespread belief that wrongful death damages are incoherent. Currently, tort law responds only to the harms of the decedent’s living relatives. Drawing on deterrence rationales, Cass Sunstein, Eric Posner, and others […]

Hugh Breakey, ‘Property Concepts’

“Concepts of property are used to describe the legal and ethical entitlements that particular people or groups have to use to manage particular resources. Beyond that most general definition of ‘property’ however, philosophical controversy reigns. Political and legal philosophers disagree on what types of entitlements are essential elements of property, and on the shape and […]

Andrew Robertson, ‘Policy-based reasoning in duty of care cases’

Abstract: This paper seeks to develop a deeper understanding of the role of policy-based reasoning in the determination of duty of care questions. In order to do this, the first part explores the distinction between considerations of interpersonal justice and considerations of community welfare in the determination of duty questions. While imperfect, the distinction illuminates […]