Monthly Archives: September, 2013

Mark Geistfeld, ‘Compensation as a Tort Norm’

Abstract: The possibility that tort law can be justified by an abstract norm of compensation has been summarily dismissed by tort scholars. A compensatory norm would seem to justify the award of compensatory damages in all cases of harm, a form of liability that is obviously at odds with the default rule of negligence liability. […]

Chris Miller, ‘Causation in Personal Injury Law: The Case for a Probabilistic Approach’

Abstract: This paper makes the case for a wider acceptance of a probabilistic approach to causation in negligence. This acceptance would help to remove much of the incoherence which has come to afflict the English law of personal injury law. This incoherence can also be found in other common law jurisdictions (notably those of the […]

Gérard Mondello, ‘Ambiguous Beliefs on Damages and Civil Liability Theories’

Abstract: This paper analyzes the meaning of comparing the economic performance of strict liability and negligence rule in a unilateral standard accident model under Knightian uncertainty. It focuses on the cost expectation of major harm on which the injurers form beliefs. It shows first that, when the Court agrees with the regulator, whatever the liability […]

‘Religion, Self-Government & Private Law’ – audio now available

“Private law is associated with the possibility of individual and group self regulation. It allows citizens to depart from and supplement public norms. Our focus in this seminar will be on the developing religious use of private law to depart from the norms of state family law. Should we be troubled by ‘privatized diversity’ and […]

Gregory Keating, ‘Redressing the Harm of Death’

“Sean Hannon Williams, Lost Life and Life Projects, 87 Indiana L.J. 1745 (2012). Sean Hannon Williams’ Lost Life and Life Projects tackles ‘wrongful death damages from the perspective of individual justice accounts of tort law’. Wrongful death damages — or, more accurately, their inadequacy — have long troubled tort scholars. Lately, as Williams shows, their […]

Aditi Bagchi, ‘Distributive Justice and Contract’

Abstract: This chapter presents and rejects three arguments against incorporating concerns of distributive justice into contract. First, private law theorists have worried that it is arbitrary to impose the burden of redistribution on a party to contract when the underlying injustice is systemic. The chapter shows that distributive concerns inform the content of interpersonal duties […]

Wayne Barnes, ‘Social Media and the Rise in Consumer Bargaining Power’

Abstract: Consumers are constantly entering into form contracts, both offline and online. They do not read most of the terms, but the duty to read says the contracts are nevertheless fully enforceable. Moreover, consumers lack any real bargaining power when assenting to such contracts with merchants. Not only that, but if the products malfunctions, or […]

Charles Knapp, ‘Is There a “Duty to Read”?’

Abstract: The notion that there is in general contract law a “duty to read” persists in the decisions of American courts. This chapter explores the question of what it may mean today to say that there is a ‘duty to read’, and concludes by suggesting what role (if any) that doctrine should play in our […]

Eberhard Feess, ‘Negligence standards and care levels when damages depend on sales prices’

Abstract: In standard models on negligence rules, due care levels can be used for fine-tuning the care levels of potential injurers, and there are good arguments why care levels should vary among different fields. We extend the analysis of the impact of due care on care actually chosen to situations where damages depend on sales […]

Paul Miller, ‘Justifying Fiduciary Duties’

Abstract: Fiduciary duties are critical to the integrity of a remarkable variety of relationships, including those between trustee and beneficiary, director and corporation, agent and principal, lawyer and client, doctor and patient, parent and child, and guardian and ward. Notwithstanding their variety, all fiduciary relationships are presumed to enjoy common characteristics and to attract a […]