Monthly Archives: January, 2013

Martijn Hesselink, ‘Private Law Principles, Pluralism and Perfectionism’

Abstract: This paper discusses the legitimacy of general principles of private law as they have been formulated recently by the Court of Justice of the European Union and proposed by the European Commission. It addresses challenges from different strands in political theory including liberal perfectionism, political liberalism and Habermasian discourse theory. There are four specific […]

Caroline Cauffman, ‘The Principle of Proportionality and European Contract Law’

Abstract: The paper investigates the role of the principle of proportionality within contract law, in balancing the rights and obligations of the contracting parties. It illustrates that the principle of proportionality is one of the general principles which govern contractual relations, and as such it is an underlying principle of more specific rules of EU […]

Linda Mullenix, ‘Nine Lives: The Punitive Damage Class’

Abstract: The concept of the punitive damage class has a long and dubious lineage, extending back more than thirty years. During the 1980s and the 1990s the concept of the punitive damage class excited plaintiffs’ attorneys, inspired countless academics, riveted at least a few defense counsel, and caught the attention of a scattering of federal […]

‘The Public Life of Private Law’ – 1st seminar – sound recordings now available

Seminar 1: Theories & Strategies. “The first seminar begins to think through some of the terms, the strategies and the theoretical frameworks that we will rely upon and develop throughout the series. To begin with, we will pose three sets of questions …” (more, mp3s) [The Public Life of Private Law, 22 January]

Kenneth Simons, ‘Victim Fault and Victim Strict Responsibility in Anglo-American Tort Law’

Abstract: Anglo-American tort doctrine pays considerable attention to the conduct of the victim as well as the conduct of the injurer. A symmetrical standard of care for victims and injurers is also common: just as injurers are liable for failure to use reasonable care, victims frequently have their compensation reduced insofar as they, too, failed […]

Flatscher‐Thöni, Leiter and Winner, ‘Pricing Damages for Pain and Suffering in Court: The Impact of the Valuation Method’

Abstract: We analyze the pricing of pain and suffering and, in particular, whether the corresponding compensation for pain and suffering is affected by a court’s approach to valuing such damages. For this purpose, we use data on pain and suffering verdicts in Austria, where courts are generally free to choose between a per‐diem and a […]

Preston and Crowther, ‘Minor Restrictions: Adolescence Across Legal Disciplines, the Infancy Doctrine, and the Restatement (Third) of Restitution and Unjust Enrichment’

Introduction: “… Part II of this Article briefly reviews the present contours of the infancy doctrine and then discusses the proposed treatment of the infancy doctrine in the Restatement (Third) of Restitution and Unjust Enrichment. Part III first reviews various critiques of the infancy doctrine. It then addresses many of the most significant laws applicable […]

Lance McMillian, ‘Adultery as Tort’

Abstract: North Carolina is one of the last remaining states to recognize tort claims arising from adultery. Ignoring criticism of this position, the appellate courts of the state have consistently and steadfastly refused to abandon adultery-based actions, despite many high-profile opportunities to do so. Traditional torts such as alienation of affections and criminal conversation thus […]

Sandra Sperino, ‘The Tort Label’

Abstract: Courts and commentators often label federal discrimination statutes as torts. Since the late 1980s, the courts increasingly applied tort concepts to these statutes. This Article discusses how courts placed employment discrimination law within the organizational umbrella of tort law without examining whether the two areas share enough theoretical and doctrinal affinities. While discrimination statutes […]

Micklitz and Svetiev, ‘A Self-Sufficient European Private Law – A Viable Concept?’

Abstract: This working paper collects the contributions to the first external workshop within the ERPL project that took place on 4 and 5 May 2012 at the EUI. The workshop aimed to clarify the key parameters to be used for analysing the claimed transformation process of European Private Law from ‘Autonomy to Functionalism in Competition […]