Monthly Archives: May, 2013

Douglas Harris, ‘Book Review of American Property: A History of How, Why, and What We Own, by Stuart Banner’

Abstract: Property Law is about things, but only secondarily. It is primarily about relationships between people as they pertain to things. As a result, although we commonly identify material and immaterial things as private, common, or state property, property law deals with the subset of human relationships that determines rights and responsibilities with respect to […]

Boilerplate Symposium Part XI: Aditi Bagchi on Boilerplate Waivers

“Aditi Bagchi is an Associate Professor at the Fordham University School of Law. Professor Radin’s Boilerplate is a pragmatist repudiation of an important social and legal phenomenon. That practice has a number of features: (1) waivers of rights and liability contained in boilerplate are often unknown to the individuals who grant those waivers (2) consumers […]

John Gardner, ‘Some Rule-of-Law Anxieties About Strict Liability in Private Law’

Abstract: This paper deals with the place of the ideal of the rule of law in evaluating doctrines of private law, especially the law of torts. The issue is played out in some debates about strict tort liability. I discuss some objections to strict tort liability that treat such liability, or certain explanations of such […]

John Gardner, ‘What is Tort Law for? Part 2. The Place of Distributive Justice’

Abstract: This is the promised sequel to my paper ‘What is Tort Law For? Part 1. The Place of Corrective Justice’. I argue that, in addition to the many ways in which tort law may raise exogenous questions of distributive justice, it raises at least two endogenous questions of distributive justice. They are: (1) how […]

Daniel O’Gorman, ‘Redefining Offer in Contract Law’

Introduction: “… Contract law’s generally accepted definition of offer, however, overlaps with the element of consideration by incorporating within it the proposal of a bargain, potentially resulting in confusion when analyzing contract formation. Thus, at least for the purpose of using contract elements as a tool for determining formation, contract law’s definition of offer should […]

Chander and Sunder, ‘Copyright’s Cultural Turn’

Abstract: How ironic that the scholarship on the area of law most directly regulating the culture industries has long resisted learning from scholarship on culture! Rather than turning to cultural studies, anthropology, geography, literary theory, science and technology studies, and media studies, over the last few decades, copyright scholars have relied largely on economics for […]

Goldberg and Zipursky, ‘Tort Law and Responsibility’

Abstract: It borders on banality to observe that tort law enables injury victims to hold tortfeasors responsible for having wrongfully injured them. Yet modern torts scholarship has largely obscured the centrality of responsibility to tort law. This is true not only of avowedly instrumental and prescriptive theories, but also of many corrective justice theories. In […]

Goldberg and Zipursky, ‘Civil Recourse Defended: A Reply to Posner, Calabresi, Rustad, Chamallas, and Robinette’

Abstract: As part of a symposium issue of the Indiana Law Journal devoted to our Civil Recourse Theory of Tort Law, we respond to criticisms by Judge Calabresi, Judge Posner, and Professors Chamallas, Robinette, and Rustad. Calabresi and Posner criticize Civil Recourse Theory as a bit of glib moralism that fails to generate useful answers […]

Benjamin Zipursky, ‘The Inner Morality of Private Law’

Abstract: Lon Fuller’s classic The Morality of Law is an exploration of the basic principles of a legal system: the law should be publicly promulgated, prospective, clear, and general. So deep are these principles, he argued, that too great a deviation from them would not simply create a bad legal system and bad law, but […]

Boilerplate Symposium X B: Professor Radin Responds to Week II

“This is the second part of the tenth in a series of posts reviewing Margaret Jane Radin’s Boilerplate: The Fine Print, Vanishing Rights and the Rule of Law. In today’s posts, our author, Margeret Jane Radin, responds to her reviewers. In the first half, she responded to the reviewers from last week. In this second […]