Monthly Archives: September, 2018

Ralph Brashier, ‘Incapacity and the Infancy Illation’

Abstract As the population of elderly Americans swells in coming decades, growing numbers of citizens will experience some degree of cognitive incapacity and require the assistance of surrogate decision-makers. Consequently, the decisions of guardians, conservators, and agents will become increasingly important. Experts have frequently noted that, despite modern reforms, doctrines concerning surrogate decision-making are problematic […]

Robin Bowley, ‘The Progressive Evolution of Australian Insurers’ Duty of Utmost Good Faith to Third Party Claimants’

Abstract Over recent decades, the significance of third parties in the insurance contractual relationship has progressively increased. In Australia, challenges by claimants with entitlements under group life insurance policies providing Total and Permanent Disablement (TPD) benefits, which are commonly arranged by trustees of superannuation funds to provide benefits to incapacitated members, have been a key […]

Jesse Wall, ‘The functional-formal impasse in (trust) property’

Abstract This paper identifies an impasse between two conceptions of ‘property rights’. Formal conceptions explain ‘property rights’ in terms of an alienable right to exclude, that has moral significance in terms of individuals’ preference satisfaction, and describe a trust beneficiary as having a right against the trustees’ right. Functional conceptions explain a ‘property right’ in […]

Stephanie Collins, ‘When does “Can” imply “Ought”?’

Abstract The Assistance Principle is common currency to a wide range of moral theories. Roughly, this principle states: if you can fulfil important interests, at not too high a cost, then you have a moral duty to do so. I argue that, in determining whether the ‘not too high a cost’ clause of this principle […]

Joseph Page, Review of Causation in European Tort Law (Infantino and Zervogianni eds)

“The disarming yet deceptively complex topic of causation in tort law has long fascinated scholars in North America. It also provides a formidable challenge that the ‘Common Core of European Private Law’ publishing project has now confronted as part of its ambitious endeavor to identify and analyze the commonalities and divergences that characterize European private […]

Matthew Willison, ‘Were Banks Special? Contrasting Viewpoints in Mid-Nineteenth Century Britain’

Abstract In 1853 a Royal Commission was set up to investigate whether laws related to limited liability in Britain needed to be modified. As part of its evidence gathering the commission issued a questionnaire that included a number of questions on whether banks should be subject to the same liability laws as other types of […]

Just Published: Anthony Gray, Vicarious Liability – Critique and Reform

The scope of vicarious liability has significantly expanded since its original conception. Today employers are being found liable for actions of employees that they did not authorise, and never would have authorised if asked. They are being held liable for an employee’s criminal activity. In the related strict liability field of non-delegable duties, they are […]

Zywicki and Stringham, ‘Austrian Law and Economics and Efficiency in the Common Law’

Abstract Is the common law efficient? Neoclassical economists debate whether our inherited systems of judge-made law maximize wealth whereas Austrian economists typically adopt much different standards. The article reviews neoclassical and Austrian arguments about efficiency in the common law. After presenting Hayek’s views on the common law as a spontaneous order it concludes that the […]

John Eldridge, ‘The New Law of Penalties: Mapping the Terrain’

Abstract This paper gives an account of recent developments in respect of the penalty rule in Australia and England, before going on to explore two unresolved questions. The first is whether Australian law recognises two jurisdictions to relieve against penalties – one in equity and another at common law – or instead a unitary penalty […]

Cathy Sherry, ‘Teaching land law – An essay’

Abstract In 2011, fellow property teachers Penny Carruthers, Natalie Skead and Kate Galloway conducted a valuable and comprehensive survey of the teaching of the compulsory property law unit in Australian law schools. Their published findings provided rich empirical data on our practices, and aimed to ‘stimulate discussion and foster the further exploration of the challenges […]