Monthly Archives: August, 2019

Barbara Fried, ‘Facing Up To Risk’

ABSTRACT By banishing decision-making in the face of uncertainty (risk) to the margins of tort theory, nonconsequentialist legal philosophers have obscured the quotidian, unavoidable, and ubiquitous tradeoffs we face in almost every arena of life. This article explores the historical antecedents of the marginalization of risk in contemporary moral philosophy, and details how legal philosophers […]

Steven Shavell, ‘The Mistaken Restriction of Strict Liability to Uncommon Activities’

ABSTRACT Courts generally insist that two criteria be met before imposing strict liability rather than basing liability on the negligence rule. The first – that the injurer’s activity must be dangerous – is sensible because strict liability possesses general advantages over the negligence rule in controlling risk. But the second – that the activity must […]

Mittlaender, Planck and Buskens, ‘Retaliation, Remedies, and Contracts’

ABSTRACT Contracts commit individuals to a future course of action and create feelings of entitlement on the parties. In a contractual gap, parties’ duties and rights are not univocal, and while promisors will often feel entitled to breach, promisees will feel entitled to receive the promised performance. This divergence leads to disputes, aggrievement, and retaliatory […]

Gregory Keating, ‘Is Tort Law “Private”?’

ABSTRACT A prominent, important strand of contemporary thinking about tort law – represented most powerfully by the work of Arthur Ripstein and Ernest Weinrib – has coalesced around the thesis that the concept of ‘private law’ is the key to the subject. In one familiar usage of the term, the thesis that tort is private […]

David Campbell, ‘The Non‐existence of Markets in the Economic Analysis of Law à la Mode’

Eric A Posner and E Glen Weyl, Radical Markets: Uprooting Capitalism and Democracy for a Just Society, Princeton, NJ: Princeton University Press, 2018, xxii, 337 pp, £24.00. Readers of this journal still following law and economics, particularly the variant associated with Richard Posner, who celebrated his eightieth birthday this year, will have been surprised by […]

‘The future of law and economics and the legacy of Guido Calabresi’ – Special number of the European Journal of Law and Economics

The future of law and economics and the legacy of Guido Calabresi (Wendy J Gordon and Alain Marciano) Mistaken about mistakes (Kathryn Zeiler) Do we need behavioral economics to explain law? (Peter T Leeson) Complexity and the Cathedral: making law and economics more Calabresian (Henry E Smith) Law, economics and Calabresi on The future of […]

Alix Rogers, ‘Unearthing the Origins of Quasi-Property Status’

ABSTRACT Under contemporary American law human corpses and some bodily parts are classified as quasi-property. Quasi-property is an American legal conception composed of limited interests that mimic some of the functions of property, but does not formally qualify as property. It is a uniquely American, idiosyncratic and misunderstood legal category. Quasi-property status is most typically […]

Doug Lichtman, ‘The Perspiration Principle’

ABSTRACT Should copyright be awarded in an instance where a work of authorship lacks inspiration and is instead simply the result of necessary and genuine hard work? Should patents likewise be offered to inventors whose achievements derive not from any flash of genius but from sweat and labor alone? In this Essay, Professor Lichtman revisits […]

Pappas and Flatt, ‘The Costs of Creating Environmental Markets: A Commodification Primer’

ABSTRACT … the Article constructs a model for evaluating market emergence and success, and with this framework, the Article makes two major contributions. First, it offers a concrete and pragmatic method for gauging the desirability of market tools for certain resources in the environmental context and beyond. For instance, the model can identify specific situations […]

David Owens, ‘Property and Authority’

ABSTRACT It is widely believed that personal property rights are to be justified by reference to the interest potential owners have in controlling things that matter to them. The first part of the paper develops one form of this view, highlighting its several theoretical merits. I then raise two problems for the control interest hypothesis […]