Monthly Archives: August, 2014

John Goldberg, ‘Inexcusable Wrongs’

Abstract: Tort law has little patience for excuses. Criminal law is more forgiving — it recognizes nominate excuses such as duress and provocation, as well as innominate excuses that temper punishment. Excuses are also commonplace in ordinary morality. Like criminal law and morality, tort law seems concerned with holding persons accountable for their wrongs, and […]

Keren-Paz and El Haj, ‘Liability versus Innovation: The Legal Case for Regenerative Medicine’

Abstract: Medical innovation occupies a position somewhere between standard practice and clinical research, but innovation is primarily intended to benefit an individual patient where standard treatment fails. Medical innovations in the area of regenerative medicine have the potential to completely transform medical practice but rely upon some major revision to the nature of treatments beyond […]

Richard Wright, ‘Moore on Causation and Responsibility: Metaphysics or Intuition?’

Abstract: This paper was prepared for a festschrift in honor of Michael Moore to be published by Oxford University Press. Moore’s magnum opus, Causation and Responsibility, amply demonstrates his encyclopedic knowledge of the relevant sources in law and philosophy and his analytical skill. Much can be learned from careful, critical reading, despite repetitive and sometimes […]

Oskar Liivak, ‘When Nominal is Reasonable: Damages for the Unpracticed Patent’

Abstract: To obtain a substantial patent damage award via reasonable royalties, a patentee need not commercialize the patented invention; infringement is all that is needed. This surely incentivizes patenting but it disincentivizes innovation. Why commercialize yourself? The law allows you to wait for others to take the risks, and then you emerge later to lay […]

Peter Kamminga, ‘The Next Level in Contract Design: Incorporating Non-Contractual Mechanisms when Negotiating and Drafting Complex Contracts’

Abstract: Defense acquisition programs are examples of complex contracts plagued by surging delays and cost overruns. In particular, contract management of defense acquisition programs has been identified as “high risk” – threatening project performance and leading to the Department of Defense (DoD) overpaying for projects. Empirical findings suggest that parties’ contractual behavior – especially the […]

Degeling and Barker, ‘Private Law and Grave Historical Injustice: The Role of the Common Law’

Abstract: This paper reintroduces the role of the common law in cases of grave historical injustice. As we conceive it, ‘grave historical injustice’ consists in serious, widespread instances of wrongdoing which, for institutional, social, political or other reasons, has remained unaddressed and un-redressed for long periods of time. Contemporary examples in Australia include the abuse […]

Muireann Quigley, ‘Propertisation and Commercialisation: On Controlling the Uses of Human Biomaterials’

Abstract: Third parties, such as researchers and biotech companies, can and do legally acquire property rights in biomaterials. They are protected by the law of property in their use of these. Recent legal decisions have seen a move towards the tentative explicit recognition of some property rights in biomaterials vesting in the source of the […]

Dan Priel, ‘Tort Law for Cynics’

Abstract: Tort scholars have in recent years defended a ‘traditional’ or ‘idealist’ view of tort law. In the context of negligence this implies that the holder of a duty of care must make an effort not to violate that duty. Idealists contrast this with a ‘cynical’ view that having a duty of care implies a […]

Nicholas Petrie, ‘Reforming the Remedy: Getting the Right Remedial Structure to Protect Personal Privacy’

Abstract: Politicians, journalists and academics have exhausted many hours over the last decade debating the question of whether Australia should have a statutory cause of action for invasion of personal privacy. In the midst of this ongoing debate, a simple question has often been overlooked: what remedies should be available to a person whose privacy […]

David Horton, ‘Indescendibility’

Abstract: Supposedly, one of the most important sticks in the bundle of property rights is the power to transfer an asset after death. This Article explores objects and entitlements that defy this norm. Indescendibility – the inability to pass property by will, trust, or intestacy – lurks throughout the legal system, from constitutional provisions barring […]