Monthly Archives: August, 2012

Gifford, Kroart, Jones and Cortemeglia, ‘What’s on First?: Organizing the Casebook and Molding the Mind’

Abstract: This study empirically tests the proposition that law students adopt different conceptions of the judge’s role in adjudication based on whether they first study intentional torts, negligence, or strict liability. The authors conducted an anonymous survey of more than 450 students enrolled in eight law schools at the beginning, mid-point, and end of the […]

Lyn Tjon Soei Len, ‘European Contract Law and the Capabilities Approach: On Distributive Responsibility for Contract Law’

Abstract: This paper argues that the normative requirements of Nussbaum’s capabilities approach extend to contract law (and private law more broadly). Contract law is part of a society’s basic structure, i.e. the responsibility bearing structure that is to secure and enhance individuals’ basic capabilities. This argument depends on one’s acceptance of a distributive conception of […]

Elizabeth Chamblee Burch, ‘Disaggregating’

Abstract: Commonality is a defining characteristic of mass-tort litigation. But mass-tort claimants typically do not share enough in common to warrant class certification. That is, commonality does not predominate. Yet, without class certification, judges cannot conclude these cases as a unit absent a private settlement. This paradox prompts two questions. First, what level of commonality […]

Christopher Essert, ‘The Office of Ownership’

Abstract: I defend an account of ownership as a legal office, according to which the rights and duties of a given owner are not the rights and duties of some individual person, but rather the rights and duties of the office of owner. This view of ownership has several advantages. First, it allows us to […]

Fabrizio Cafaggi, ‘The Regulatory Functions of Transnational Commercial Contracts: New Architectures’

Abstract: In this essay, three questions concerning the use of transnational commercial contracts as regulatory vehicles are examined: (1) Why have regulatory provisions increasingly been incorporated into commercial contracts and what are the main drivers of this phenomenon? (2) What are the instruments of incorporation into contracts? (3) What are the consequences, proximate and remote, […]

Daniela Caruso. ‘The “Justice Deficit” Debate in EU Private Law: New Directions’

Abstract: This essay outlines the ongoing debate on the justice deficit of EU private law – the ‘social justice’ debate – and then points at an underexplored avenue of inquiry that is essential for this debate to stay meaningful and constructive. Future research should aim to calibrate EU private law to the socio-economic asymmetries of […]

Harvey and Schillig, ‘Consequences of an Ineffective Agreement to Use the Common European Sales Law’

Abstract: In order to opt in to the proposed Common European Sales Law, the parties must utilise the mechanism set out in the Regulation, in accordance with which they ‘agree to use the CESL’ and thus subject their contract to the CESL. This article examines an issue that has so far received little attention: the […]

Rebecca Stone, ‘Economic Analysis of Contract Law from the Internal Point of View’

Abstract: Traditional economic analysis of the law supposes that legal rules are and ought to be designed to maximize social welfare taking as given that legal subjects are self-interested utility maximizers who care about complying with the law only insofar as non-compliance exposes them to the risk of sanctions. This paper challenges this motivational assumption […]

David Fagundes, ‘Efficient Copyright Infringement’

Abstract: Copyright infringement tends to be socially costly because it robs owners of due recompense and depresses incentives for creative production. This Article contends that in order to achieve copyright’s goal of maximizing cultural production, this dominant story of infringement’s costs requires alongside it a counter-story identifying the rare but important instances where copyright infringement […]

Orit Gan, ‘Contractual Duress and Relations of Power’

Abstract: Consent is one of the pillars of contract law and the subject of much scholarly literature. At the same time, feminist scholarship concentrates on consent to sex and scarcely deals with contractual consent. This Article aims at bridging this scholarly gap. Focusing on duress doctrine in the context of relations of power, it uses […]