Monthly Archives: February, 2013

Matthew Harding, ‘Trust and Fiduciary Law’

Abstract: How can it be that the fiduciary relationship has trust at its core if trust is neither a necessary nor a sufficient condition for the existence of such a relationship? My aim in this article is to make some arguments that I think might assist in solving that puzzle. First, I argue that fiduciary […]

Miller and Perry, ‘Good Faith Performance’

“This Article aims to unveil and undermine one of the most resonant truisms in contract law. It shows that a dominant criterion used by courts and academics in applying the omnipresent and overarching principle of good faith is essentially flawed. Our argument is innovative in at least four respects. First, it uncovers a common denominator […]

Are Risks Wrong? Anthony Sebok on John Oberdiek, ‘The Moral Significance of Risking’

“In The Moral Significance of Risking, John Oberdiek offers a theory of why risk imposition is prima facie wrong. Oberdiek admits that his argument will only be persuasive if he applies it to risk imposition in its purest form (what he calls ‘risking’). Risking’s moral significance – if it has any – must be based […]

Dan Priel, ‘The Indirect Influence of Politics on Tort Liability of Public Authorities in English Law’

Abstract: The scope of negligence liability of public authorities in English law has undergone significant changes in the Post-World War II period, first expanding and then, from the mid-1980s, retracting. This article tries to explain why this happened not by focusing, as is common in most commentary on this area of law, on changing doctrinal […]

Symposium: The Boundaries of Public Law

Michel Rosenfeld, “Rethinking the boundaries between public law and private law for the twenty first century: An introduction” Int J Constitutional Law (2013) 11(1): 125-128 doi:10.1093/icon/mos053. “The distinction between public law and private law has been both ever present and unwieldy in civil law as well as in common law jurisdictions. Kelsen found the distinction […]

James Rogers, ‘Indeterminacy and the Law of Restitution’

Abstract: Squishy. That’s been the rap on the law of restitution since before there even was a law of restitution. In Moses v. Macferlan, Lord Mansfield stated that whenever the defendant is “under an obligation, from the ties of natural justice, to refund” the money, the law allows an “action [for the money received], founded […]

Crawley and Van Praagh, ‘”Academic Concerns” – Caring about Conversation in Canadian Common Law’

Abstract: The Supreme Court of Canada, in its 2001 decision in Cooper v Hobart, refined the test in Canadian common law for establishing a duty of care in the tort of negligence. Although aware of the complexities and ongoing challenges of the “duty of care” concept, the Supreme Court openly labelled these concerns as “academic.” […]

Constructive steps in European Parliament on Common European Sales Law

“Two committees of the European Parliament have been looking at the Proposal for a Common European Sales Law (CESL) this week. The proceedings in both represented satisfactory progress. On Wednesday the Legal Affairs Committee heard a presentation of a draft Report prepared by its co-rapporteurs …” (more) [Eric Clive, European Private Law News, 23 February […]

Farrell, Devaney and Dar, ‘No-Fault Compensation Schemes for Medical Injury: A Review’

Abstract: This report was commissioned by the No-Fault Compensation Review Group in Scotland. It provides an up-to-date analysis of existing no-fault schemes in New Zealand, Sweden, Denmark, Norway, and Finland, as well as limited schemes which operate in Virginia and Florida in the United States. Drawing on such analysis, the report considers a number of […]

Shawn Bayern, ‘Offer and Acceptance in Modern Contract Law: A Needless Concept’

Abstract: The notion that contracts require an offer and an acceptance is one of the last remaining bastions of classical contract law. On reflection, it is striking how poorly the offer-and-acceptance paradigm fits large areas of contracting practice; it is simply untrue that all or even most contracts are formed by means of a salient […]