Monthly Archives: April, 2013

Anna di Robilant, ‘Property: A Bundle of Sticks or a Tree?’

Abstract: In the United States, property debates revolve around two conceptual models of property: the ownership model, originally developed in Europe and now revisited by information theorists and classical-liberal theorists of property, and the bundle of rights model, developed in the United States by Hohfeld and the realists. This Article retrieves an alternative concept of […]

Andrei Molchynsky, ‘The Translator as a Traitor: A Comparative and Jurilinguistic Glance at the Polysemous Notion of “Right” in Private Law’

Abstract: In this article, the author examines the difficulties encountered by the common law scholars in translating the Latin word ius and its civilian counterparts, such as droit and Recht, into English. To demonstrate this perplexity, the author analyses the works of two authoritative Englishmen who were well trained in classics – Thomas Hobbes and […]

Sanne Knudsen, ‘The Long-Term Tort: In Search of a New Causal Paradigm for Natural Resource Damages’

Abstract: Scientific evidence is mounting regarding the persistence and significance of toxic releases in the marine environment. Though a new paradigm is emerging in the scientific literature – one that demonstrates long-term impacts from oil spills are more significant than previously thought – legal scholars have yet to consider the law’s ability to remedy long-term […]

Sarah Lynnda Swan, ‘Triangulating Rape’

Abstract: Civil actions for rape and sexual assault have recently been undergoing significant changes in both quantity and quality. Quantitatively, the number of these kinds of cases has increased dramatically since the 1970s. Qualitatively, the litigation has shifted from a woman versus man paradigm to a triangulated tort claim involving a female plaintiff, a male […]

Larissa Katz, ‘Spite and Extortion: A Jurisdictional Principle of Abuse of Property Right’

Abstract: This Essay puts forward the conceptual and normative underpinnings of a principle of abuse of property right. Owners abuse their right, I argue, when their decisions about a thing are designed just to produce harm. This is so whether that harm is an end in itself (spite) or a means to achieving some ulterior […]

Georges Cavalier, ‘Punitive Damages and French International Public Policy’

Abstract: The purpose of this paper is to demonstrate that current French international public policy no longer condemns punitive damages by principle. French substantive law is discussed before being evaluated how it fits into comparative and international perspectives. Cavalier, Georges A. J., Punitive Damages and French International Public Policy (2011). Comparative Studies on Business Tort […]

Omri Ben-Shahar, ‘Regulation Through Boilerplate: An Apologia’

Abstract: This essay reviews Margaret Jane Radin’s Boilerplate: The Fine Print, Vanishing Rights, And The Rule Of Law (Princeton Press, 2013). It responds to two of the book’s principal complaints against boilerplate consumer contracts: that they modify people’s rights without true agreement to, or even minimal knowledge of, their terms; and that the provisions they […]

Royce De Rohan Barondes, ‘Side Letters, Incorporation by Reference and Construction of Contractual Relationships Memorialized in Multiple Writings’

Abstract: Significant business relationships are often memorialized in multiple documents – sometimes in the form of multiple simultaneous documents, on other occasions with an intentional sequencing of the documents. There can be good reasons for using multiple writings. A number of principles of contract construction and enforcement are not well adapted to this style of […]

Harry Hutchison, ‘Lochner, Liberty of Contract and Paternalism: Revising the Revisionists?’

Abstract: Given the resilience of the opposition to the liberty of contract jurisprudence, a doctrine that is epitomized by Lochner, and given the insistent dedication of scholars and jurists to a largely mistaken understanding of economic substantive due process argumentation, it is an appropriate time to review David Mayer’s contribution to the literature surrounding Lochner. […]

Max Kennerly, ‘The Danger of Assuming Judicial Omniscience in Tort Law’

“When Chris invited me to write a guest post for TortsProf, I already knew what I was going to write about: how the courthouse doors were being increasingly closed on tort plaintiffs by way of procedural changes, to the point that, in many contexts, civil procedure law was more determinative of the outcome of tort […]