Monthly Archives: May, 2020

‘Can the Adoption of the CISG Save the Commercial Relationship of Parties in India?’

“Commerce cannot thrive if contractual bargains are not enforced by law. Such enforcement has to be predictable, consistent and accessible. The parties need to be reassured that the law will protect the ‘benefit of their bargain’ or, in the alternative, provide suitable remedies. In a move affirming the ‘civil’ approach towards enforcement of contracts, the […]

Baumann, Friehe and Langenbach, ‘Fines versus Damages: Experimental Evidence on Care Investments’

ABSTRACT This paper studies the differential effects of fines and damages on people’s investment in accident prevention. We report results from a laboratory experiment in which monetary payoffs are maintained across the two policy instruments. While standard theory predicts no difference in behavior, we find that potential injurers invest substantially more money in accident prevention […]

‘Peer Review: A Casualty of the Pandemic?’

“I confess: even in the best of times, my first impulse upon spotting an email from a journal or book publisher or tenure and promotion committee that I just know is a request for peer review is not to rejoice at yet another chance to serve and sustain the Republic of Scholars. With so many […]

Peter Jaffey, ‘Policy and principle and the character of private law’

ABSTRACT Some commentators recognise a distinction between policy and principle and regard private law as exclusively a matter of principle. Variants of this approach are found in Dworkin and corrective justice and ‘rights’ theorists. For these commentators, the distinction is fundamental to the character of private law, and to its development through the common law. […]

Bar-Gill and Ben-Shahar, ‘Rethinking Nudge: An Information-Costs Theory of Default Rules’

ABSTRACT Policymakers and scholars – both lawyers and economists – have long been pondering the optimal design of default rules. From the classic works on ‘mimicking’ defaults for contracts and corporations to the modern rush to set ‘sticky’ default rules to promote policies as diverse as organ donations, retirement savings, consumer protection, and data privacy, […]

Robert Brain, ‘The Unnecessary Implied Warranty of Fitness for a Particular Purpose’

INTRODUCTION … This Article has three major substantive parts. Part II explains why the proper theory for fitness problems is through an express warranty theory. Part III traces a brief history of the fitness warranty in the King’s courts, demonstrating that even from its inception, express warranty was the proper theory to resolve fitness issues. […]

David Ellerman, ‘Corporations!’

ABSTRACT Corporations have been getting a bad rap lately. Many blame ‘corporations’ for a litany of ills that, upon closer examination, should be blamed on another institution. Our goal is to analyze a miscellany of fallacies concerning the Citizens United case, corporate personhood, the stakeholder theory, the affected interests principle, and finally ending with the […]

Frederick Wilmot-Smith, ‘Illegality as a Rationing Rule’

ABSTRACT Legal systems have limited resources; those resources have to be distributed, and ideally the distribution would be just. This paper considers the role of legal doctrines – and, in particular, the doctrine of illegality – to ration and distribute individuals’ access to the goods of a legal system. My conclusion is that the illegality […]

Goldenfein, Green and Viljoen, ‘Privacy Versus Health is a False Trade-off’

ABSTRACT As tech firms team up with governments to fight the coronavirus pandemic, we’re being asked to accept a trade-off between our digital privacy and our health. It’s a false choice: we can achieve the public health benefits of data without accepting abusive and illicit surveillance. Goldenfein, Jake and Green, Ben and Viljoen, Salome, Privacy […]

Saks and Landsman, ‘The Paradoxes of Defensive Medicine’

ABSTRACT For decades, ‘defensive medicine’ has been the leading argument driving reforms of medical malpractice laws throughout the United States. Defensive medicine is the presumed practice of administering excessive tests and treatments as a stratagem for reducing healthcare providers’ risk of malpractice liability, despite the absence of any expected benefit for the patient. The practice […]