Monthly Archives: November, 2013

Ming Wai Lau, ‘The Nature of the Beneficial Interest – Historical and Economic Perspectives’

Abstract: This article revisits a century-old debate over the nature of the beneficial interest. The issues and arguments may be complex, but the debate boils down to the simple question of whether the beneficial interest is a personal right or a property right. This debate is better served by analyzing the issues raised – the […]

Hylton, Lin and Chu, ‘Negligence and Two-Sided Causation’

Abstract: We extend the economic analysis of negligence and intervening causation to “two-sided causation” scenarios. In the two-sided causation scenario the effectiveness of the injurer’s care depends on some intervention, and the risk of harm generated by the injurer’s failure to take care depends on some other intervention. We find that the distortion from socially […]

Jeffrey Pojanowski, ‘Private Law and Legislation’s Domain’

Abstract: Private law subjects like tort, contract, and property are traditionally taken to be at the core of the common law tradition, yet statutes increasingly intersect with these bodies of doctrine. This Article draws on recent work in private law theory and statutory interpretation to consider afresh what courts should do with private law in […]

Andrew Gold, ‘Expressive Remedies in Private Law’

Abstract: Private law remedies are clearly expressive. It is a separate question whether the expressive features of these remedies are part of the legal point of view. Several leading private law theorists have recently provided expressive accounts of private law remedies, and this perspective is now represented among both corrective justice and civil recourse theorists. […]

Dan Priel, ‘Private Law: Commutative or Distributive?’

Abstract: Allan Beever argues in his new book that there are two distinct forms of justice — commutative and distributive — and that we have forgotten about commutative justice, the form of justice that governs our interpersonal relationships. Consequently, we erroneously think of private law from the perspective of distributive justice, the form of justice […]

Dysfunctional Real Estate Contracts

“Today’s mini-review is of ‘Dysfunctional Contracts and the Laws and Practices that Enable Them: An Empirical Analysis’, 46 Ind. L. Rev. 797 (2013), by Debra Pogrund Stark, Dr. Jessica M. Choplin, and Eileen Linnabery. Apparently, many real estate contracts limit buyers’ remedies to return of earnest money, and many courts enforce such limitations. The problem […]

Peter Watts, ‘Taxonomy in Private Law – Furor in Text and Subtext’

Abstract: This article starts with an overview of the debates over classification in private law that took place in the latter period of Peter Birks’s career. It does so by setting out the Birksian taxonomy and by collecting various extracts from Birks’s voluminous output, then contrasts those extracts with the views of a selection of […]

Ekaterina Pannebakker, ‘Offer and Acceptance and the Dynamics of Negotiations: Arguments for Contract Theory from Negotiation Studies’

Abstract: The doctrine of offer and acceptance forms the basis of the rules of contract formation in most western legal systems. However, if parties enter into elaborate negotiations, these rules may become difficult to apply. This paper addresses the application of the doctrine of offer and acceptance to the formation of contract in the context […]

Catherine Sharkey, ‘Tort as Backstop to Regulation in the Face of Uncertainty’

“Thomas Merrill & David Schizer, The Shale Oil and Gas Revolution, Hydraulic Fracturing, and Water Contamination: A Regulatory Strategy, Columbia Law and Economics Working Paper No. 440 (2013). Thomas Merril and David Schizer — a property law theorist and tax law expert — deliver an ostensibly new framework for analyzing tort liability-regulation tradeoffs, standing on […]

Maurizio Borghi, ‘Copyright and Truth’

Abstract: This Article calls into question the primary meaning of copyright law. It argues that copyright is not primarily a legal instrument, but rather a fundamental mode of human existence. The starting point of the analysis is Kant’s definition of a book as a “public address” and of author’s rights as ultimately being grounded in […]