Monthly Archives: February, 2015

Deborah Gordon, ‘Trusting Trust’

Abstract: What is a trustee and how should we understand her duties? The existing literature typically identifies the trustee in the role of agent, partner or contracting party. This Article re-envisions the trustee in the role of the legal system’s most trusted type of decision-maker: the common law judge. Rather than argue for a top-down […]

Lauren Henry, ‘Privacy as Quasi-Property’

Abstract: Courts and commentators struggle to apply privacy law in a way that conforms to the intuitions of many. It is often thought that the reason for this is the absence of an agreed upon conceptual definition of privacy. In fact, the lack of a description of the interest invaded in a privacy matter is […]

Zamir and Teichman (eds), The Oxford Handbook of Behavioral Economics and the Law

The first comprehensive and systematic introduction to behavioral legal studies. Provides a critical introduction to the heuristics and biases literature, human pro-social motivation, and moral judgment. Includes dozens of critical surveys of the behavioral analysis of various legal fields, ranging from tort, contract, property and insurance law to regulation, evidence, and litigation. The past twenty […]

Eigen and Hoffman, ‘A Fuller Understanding of Contractual Commitment’

Abstract: Contract recitals are ubiquitous. Yet, we have a thin understanding of how individuals behave with respect to these doctrinally important relics. Most jurists follow Lon Fuller in concluding that when read, contract recitals accomplish their purpose: to caution against inconsiderate contractual obligation. Notwithstanding the foundational role that this assumption has played in doctrinal and […]

Chang, Eisenberg, Ho and Wells, ‘Pain and Suffering Damages in Wrongful Death Cases: An Empirical Study’

Abstract: Most jurisdictions in the United States award pain and suffering damages to spouses of victims in wrongful death cases. In several East Asian countries, spouses, parents, and children of the victim can all demand pain and suffering damages. Despite the prevalence of this type of damages, and the oft‐enormous amount of compensation, there has […]

Just published: Hatzis and Mercuro (eds), Law and Economics: Philosophical Issues and Fundamental Questions

The Law and Economics approach to law dominates the intellectual discussion of nearly every doctrinal area of law in the US and its influence is growing steadily throughout Europe, Asia and South America. Numerous academics and practitioners are working in the field with a flow of uninterrupted scholarship that is unprecedented as is its influence […]

David Campbell, ‘Interpersonal justice and actual choice as ways of determining personal injury law and policy’

Abstract: Adapting the concept of ‘interpersonal justice’ used by Professor Robertson to provide a ‘meta-doctrinal’ defence of the law of negligence, this paper asks whether the personal injury system can be thought to have a democratic justification in common beliefs in such justice. It is widely acknowledged that the gross functional inadequacy of the personal […]

Kaiponanea Matsumura, ‘Binding Future Selves’

Abstract: Courts traditionally treat a person entering an agreement as the same person at the time of enforcement notwithstanding the passage of time or an intervening change of mind. For certain agreements between intimates, however, courts have adopted the novel view that the enforcement of a person’s earlier commitment would improperly constrain that person’s will […]

Tess Wilkinson-Ryan, ‘Incentives to Breach’

Abstract: Empirical evidence and common sense tell us that most people are responsive to economic incentives as well as social and moral norms, and that these sets of incentives are often in tension. The tradeoffs between moral and financial preferences are particularly salient in much legal decision-making, especially in the private law context. This paper […]

Hila Keren, ‘Guilt-Free Markets? Unconscionability, Conscience, and Emotions’

Abstract: Despite record-level economic inequalities and a vast growth in market exploitation, courts remain surprisingly reluctant to exercise their power to in-validate the resulting predatory contracts. There is no doubt that courts are authorized to invalidate predatory contracts based on their unconscionability. There is, however, an ongoing debate regarding the desirability of utilizing this judicial […]