Monthly Archives: September, 2012

Stephanie Hoffer, ‘Misrepresentation: The Restatement’s Second Mistake’

Abstract: The contract defenses of mistake and misrepresentation, while conceptually distinct in theory, contain an inefficient amount of overlap in practice. This is because a misrepresentation of one party, when believed, results in a mistaken belief of the other. Each produces a failure of consent resulting from at least one party’s misconception of the facts, […]

Ken Oliphant, ‘Cultures of Tort Law in Europe’

Abstract This article provides a short introduction to the present special issue of the Journal of European Tort Law, which critically investigates the cultures of tort law in four selected national or regional contexts in Europe: England, France, Germany and Scandinavia. It explains what is meant by the idea of a culture of tort law, […]

Carla Spivack, ‘Killers Shouldn’t Inherit From Their Victims … Or Should They?’

Abstract: The article offers a profound reassessment of so-called “Slayer Rules,” laws that, in most states, bar killers from inheriting from their victims. For the first time in the literature, this piece questions the underlying rationale for these rules by examining the context of family violence and mental illness in which these killing occur, and […]

Impressive paper by European Law Institute on the proposed Common European Sales Law

“The European Law Institute (ELI) has published a most impressive, and constructive, 300 page paper on the proposed Common European Sales Law (CESL). It takes the political aims of the proposal as given and, as is appropriate for such a body, concentrates on technical legal points designed to make the CESL fulfil its intended purposes […]

Steven Shavell, ‘A Fundamental Enforcement Cost Advantage of the Negligence Rule over Regulation’

Abstract: Regulation and the negligence rule are both designed to obtain compliance with desired standards of behavior, but they differ in a primary respect: compliance with regulation is ordinarily assessed independently of the occurrence of harm, whereas compliance with the negligence rule is evaluated only if harm occurs. It is shown in a stylized model […]

Marija Bartl, ‘Legitimacy and European Private Law’

Abstract: This thesis inquires into the Legitimacy of Harmonisation of European Private law (EPL) against the background of the broader debate on the Legitimacy of the EU, and its so- called Social and Democratic deficits. While the ‘Social’ deficit has a fundamental importance for the ‘self-understanding’ of the EU and its role in private law, […]

Daniel Markovits and Alan Schwartz, ‘The Expectation Remedy Revisited’

Introduction: “We recently published an article in the Virginia Law Review that analyzed the standard contract remedies for breach and asked how those remedies relate to the theory of efficient breach. The Review commissioned two responses to our article, and it generously offered to let us reply to those responses. We are grateful to the […]

Jason Solomon, ‘The Political Puzzle of the Civil Jury’

Abstract: At the root of many contemporary debates over the civil justice or tort system — debates over punitive damages, preemption, and tort reform more broadly — are underlying questions about the justification for the civil jury. The United States is the only country that still uses a jury in civil cases, and most civil […]

Legal Theory – special number on Tort Theory

THE LIMITS OF A NONCONSEQUENTIALIST APPROACH TO TORTS by Barbara H. Fried Abstract: The nonconsequentialist revival in tort theory has focused almost exclusively on one issue: showing that the rules governing compensation for “wrongful” acts reflect corrective justice rather than welfarist norms. The literature either is silent on what makes an act wrongful in the […]

Tim Iglesias, ‘Reunifying Property in the Classroom: Starting with the Questions, Not the Answers’

Abstract: This essay argues that the myriad property doctrines and rules are answers to several consistent legal questions, and that these questions provide a useful framework for teaching Property law. The problem with Property Law courses is that we cover a slew of topics in which we load students up with a wide variety of […]