Monthly Archives: April, 2016

Waitzer and Sarro, ‘Protecting Reasonable Expectations: Mapping the Trajectory of the Law’

Abstract: The doctrine of reasonable expectations has evolved into a powerful tool for judicial and regulatory activism and, as a result, a bellwether for the trajectory of the law. The concept has broadened — both in scope and in the range of potential claimants. Yet it has been used to achieve goals that are remarkably […]

‘Unwinding failed contracts’

“The Wilson Memorial Lecture was given yesterday by Sonja Meier of the University of Freiburg on the theme of ‘Unwinding failed contracts – new European developments’. It was a brilliant performance, beautifully delivered, perfectly timed and, above all, cogently argued. Taking the Swiss draft Obligationrecht 2020 and the recent reform of the French law of […]

‘No Contractual Duty of Good Faith in Texas’

“In spite of most jurisdictions reading a duty of good faith and fair dealing into all contracts, a Fifth Circuit Court of Appeals has held that it is unlikely that the Texas Supreme Court would find such a duty to exist in Texas. Wow. Additionally, the court found that no fiduciary relationship between a university […]

Reid Weisbord, ‘A Copyright Right of Publicity’

Abstract: This Article identifies a striking asymmetry in the law’s disparate treatment of publicity-rights holders and copyright holders. State-law publicity rights generally protect individuals from unauthorized use of their name and likeness by others. Publicity-claim liability, however, is limited by the First Amendment’s protection for expressive speech embodying a ‘transformative use’ of the publicity-rights holder’s […]

Edwin Fruehwald, ‘Bringing Legal Education Reform into the First Year: A New Type of Torts Text’

Abstract: Legal education reform has reached the first year of law school. Reform of the first year of law school is vital because it lays the foundation for the second and third years, as well as legal practice. Of course, changes to the first year must be done properly, following the latest research in how […]

Matthew Bodie, ‘Employment as Fiduciary Relationship’

Abstract: Under traditional agency law doctrine, employees are agents of their employers and owe an agent’s concomitant fiduciary duties. Employers, in turn, are merely principals and have no corresponding fiduciary duties. A new wave of thinking has unsettled this approach by concluding that only high-level employees have fiduciary responsibilities to their employers. Taking this controversy […]

Goldberg and Zipursky, ‘The Myths of Macpherson

Abstract: For a symposium marking the centenary of Macpherson v Buick, we identify three common characterizations of Cardozo’s famous opinion that purport to explain its importance. Unfortunately, each of these characterizations turns out to be a myth. MacPherson is worthy of celebration, but not because it recognizes that negligence law’s duty of care is owed […]

Goldberg and Zipursky, ‘Triangular Torts and Fiduciary Duties’

Abstract: When a professional is negligent in providing services to her client or patient, third parties are sometimes harmed. ‘Triangular torts’, as we call them, are negligence claims brought against professionals by such third parties. One common example involves a father suing a therapist for inducing his daughter to have false memories of childhood abuse, […]

Dagan and Dorfman, ‘Against Private Law Escapism: Comment on Arthur Ripstein, Private Wrongs

Abstract: Can a comprehensive theory of tort law evade the ultimate test of our moral intuitions (or reflective equilibrium)? We shall argue, first, that Ripstein’s illuminating Private Wrongs, including in particular his organizing distinctions between misfeasance and nonfeasance, between relation and comparison, and between horizontal and vertical justice, cannot escape that test; and, second, that […]

Luppi and Parisi, ‘Optimal liability for optimistic tortfeasors’

Abstract: As Alicke and Govorun (The self in social judgment, Psychology Press, New York, 2005, p 85) observed, ‘most people are average, but few people believe it’. Optimism and other forms of inflated perception of the self lead parties to exercise suboptimal precautions when undertaking risky activities and often undermine the incentive effects of tort […]