Monthly Archives: November, 2011

Larissa Katz, ‘The Regulative Function of Property Rights’

Abstract: In this paper, I examine three different models of how we manage our common resources through a system of private property rights. One model (the exclusion approach) is to control owners’ decisions indirectly, through markets. Another model (the bundle-of-rights approach) is to regulate owners’ decisions directly, by setting out specifically what they can or […]

Larissa Katz, ‘The Concept of Ownership and the Relativity of Title’

Abstract: What does the relativity of title tell us about the concept of ownership in the common law? The traditional answer is that the common law protects not ownership but rather rights to possess of varying strength. There are no owners on this view, just possessors. A modern version of this story, equally reductionist, is […]

Nicos Stavropoulos, ‘Obligations and the Legal Point of View’

Abstract: Some political action is legally relevant: it has an impact on the law, defined as the change in legal rights and obligations (powers, privileges, immunities or liabilities) that obtains, without further political action, as a result of some such action. Consider some standard examples – enacting statutes, adopting regulations, deciding cases. What precise aspect […]

Bert-Jaap Koops, ‘The Evolution of Privacy Law and Policy in the Netherlands’

Abstract: This paper describes how privacy and data protection law and policy have evolved in the Netherlands from the 1960s onwards. The description is guided by two questions: have policy changes occurred in privacy legislation, and how can these changes be explained? The paper describes, first, legislation focusing on spatial and relational privacy, with a […]

Iris Goodwin, ‘Why Civil Law Countries Might Forego the Individual Trustee: Provocative Insights from the New-to-the-Fold’

Abstract: At the center of this article lies a decision in several civil law countries that have adopted the common law trust to restrict the office of trustee to banks and similar financial service institutions. Having had an opportunity to consider the trust anew, these countries represent a challenge to the common law where the […]

Tracey Carver, ‘Insurance and the law of negligence : an influential or irrelevant persuader’

Abstract: This article examines, from both within and outside the context of compulsory third party motor vehicle insurance, the different academic and judicial perspectives regarding the relevance of insurance to the imposition of negligence liability via the formulation of legal principle. In particular, the utility of insurance in setting the standard of care held owing […]

Daniel Keating, ‘Examining UCC Title Battles Through a Torts Lens’

Abstract: For nearly seventy-five years, commercial law scholars and commentators have debated whether the foundations of commercial law, and especially the rules of title, are anchored in the principles of property or contracts. This Article argues that the property vs. contracts debate about the foundations of commercial law is missing a key piece: namely, the […]

George Triantis, ‘Promissory Autonomy, Imperfect Courts, and the Immorality of the Expectation Damages Default’

Abstract: Charles Fried’s Contract as Promise articulated a liberal theory of contract based on the normative ideal that contract law should respect individual freedom and autonomy to make binding commitments. The touchstone of contractual analysis from this perspective is the intent of the promisor. This essay revisits the justification under this promissory theory for expectation […]

Gary Low, ‘Will Firms Consider a European Optional Instrument in Contract Law?’

Abstract: The diversity of contract laws is said by the Commission to discourage cross-border trade and hinder the development by SMEs of a pan-European commercial policy. An optional instrument containing both facilitative general contract rules and mandatory consumer protection rules, one of the solutions proposed by the Commission, is gaining rapid support from key stakeholders. […]