Monthly Archives: September, 2015

‘Binding Future Selves’

“On a recent plane ride, I was fortunate enough to have brought along Kaiponanea Matsumura’s article, ‘Binding Future Selves’, 75 Louisiana Law Review 71 (2014) which tackles the very complicated issue of decision making in the context of agreements involving ‘intimate subjects’ such as procreation and child-rearing. He raises a lot of issues that kept […]

Just Published: Sandy Steel, Proof of Causation in Tort Law

“Causation is a foundational concept in tort law: in claims for compensation, a claimant must demonstrate that the defendant was a cause of the injury suffered in order for compensation to be awarded. Proof of Causation in Tort Law provides a critical, comparative and theoretical analysis of the general proof rules of causation underlying the […]

Oliver Gerstenberg, ‘Constitutional Reasoning in Private Law: The Role of the CJEU in Adjudicating Unfair Terms in Consumer Contracts’

Abstract: This article explores the – often controversial – role of the CJEU as an interpreter of Directive 93/13/EEC on unfair terms. A fundamental problem that any modern system of private law must address is how to combine two types of provisions: those that are intended to facilitate private ordering through voluntary transactions, and those […]

Marija Bartl, ‘Internal Market Rationality, Private Law and the Direction of the Union: Resuscitating the Market as the Object of the Political’

Abstract: This paper proposes a concept of ‘internal market rationality’ for the analysis of the political, legal and economic consequences of European integration. Internal market rationality refers to a specific pattern of political action in the field of internal market, which has emerged gradually due to the confluence of three main factors: first, the EU’s […]

Heinze and Marcou, ‘Review of Leone Niglia, The Struggle for European Private Law: A Critique of Codification

Abstract: Controversies around the European Commission’s attempt to codify European Union private law now usher the codification saga into the twenty-first century. Much EU scholarship has focused on the adoption of the Draft Common Frame of Reference or its shortened version, the Optional Sales Law Code. In The Struggle for European Private Law, Leone Niglia […]

Smith and Berryman, ‘Disgorgement of Profits in Canada’

Abstract: Canadian law sometimes allows gain-based remedies for certain wrongful acts. There is a strong suggestion that gain-based remedies are available in the common law provinces for torts and perhaps breaches of contract, but the courts have been hesitant. Common law provinces have also been willing to award gain-based remedies for breaches of confidence, in […]

‘Charles Fried, Contract as Promise, 2.0′

“The second edition of Charles Fried’s foundational book Contract as Promise is now out in print, and to celebrate the event, Harvard Law School held a special panel comprising of Charles Fried himself as well as other HLS professors. The event itself was filmed and the YouTube link is appended at the bottom of this […]

Christopher Buccafusco, ‘A Theory of Copyright Authorship’

Abstract: The US Constitution gives Congress the power to grant rights to ‘Authors’ for their ‘Writings’. Despite the centrality of these terms to copyright jurisprudence, neither the courts nor scholars have provided coherent theories about what makes a person an author or what makes a thing a writing. This article articulates and defends a theory […]

Hazel Glenn Beh, ‘Curing the Infirmities of the Unconscionability Doctrine’

Abstract: This Article considers the unconscionability doctrine and confronts criticisms that the doctrine is fatally flawed as too vague, flexible, and ill-defined. It argues that unconscionability is a vital contract doctrine that entrusts common law judges with the latitude and discretion to safeguard essential contracting fairness and justice. Unconscionability serves as the line of demarcation […]

David McLauchlan, ‘Repudiatory Breach, Prospective Inability, and the Golden Victory

Abstract: When a contract for the supply goods or services is terminated on account of the buyer’s wrongful repudiation, the supplier is usually entitled to recover damages based on the difference between the contract price/rate and the market price/rate. However, what is the position if the evidence establishes that, had the contract remained on foot, […]