Monthly Archives: December, 2011

Lee Anne Fennell, ‘Lumpy Property’

Abstract: A bridge that only spans three-quarters of the distance across a chasm is useless, although far from costless. This standard, intuitive example of a lumpy or step good illustrates a point about discontinuities and complementarities that has broad, and mostly unexplored, significance for property law. In this essay, I explain how, why, and when […]

Private Law Theory blog, the first 4 months – highlights of 2011

This blog went live on 3 September. 4,737 pageviews so far, from 2,519 distinct visits. 60% of the visits are from returning users. Only 9% of visits involved mobile devices. The most common browsers are IE (30%), Safari (23%), Firefox (22%) and Chrome (21%). Most of the traffic comes direct (54%), some is referred (27%), […]

Gregory Alexander, ‘Pluralism and Property’

Abstract: Welfarism is no longer the only game in the town of property theory. In the last several years a number of property scholars have begun developing various versions of a general vision of property and ownership that, although consistent with welfarism in some respects, purports to provide an alternative to the still-dominant welfarist account. […]

Amir Nezar, ‘Reconciling Punitive Damages with Tort Law’s Normative Framework’

Abstract: As punitive damages have gained greater visibility in Supreme Court jurisprudence, the need for principles explaining punitive damages and guiding their application has grown. Corrective justice would seem suited to providing guidance in this arena of tort law, but unfortunately it has never satisfactorily accounted for punitive damages. This Note seeks to answer that […]

Aditi Bagchi, ‘Managing Moral Risk: The Case of Contract’

Abstract: The concept of moral luck describes how the moral character of our actions seems to depend on factors outside our control. Implications of moral luck have been extensively explored in criminal law and tort law, but there is no literature on moral luck in contract law. This Essay shows that contract law is an […]

Laverne Jacobs, ‘Reconciling Tort and Administrative Law Concepts of Justice: The Case of Historical Wrongs’

Abstract: The first part of this article provides an overview of the most dominant private and public law approaches that have been attempted in the courts by plaintiffs seeking redress for historical wrongs and outlines why these approaches have been unsuccessful. It also defines the notion of historical wrongs and provides background on the two […]

Mark Leeming, ‘Equity, the Judicature Acts and Restitution’

Abstract: What did the Judicature legislation do? What relevance does it have to current debates on the relationship between equity and restitution? Most of this article (sections 2-8) provides, largely by reference to primary materials, a contextual account of the English Judicature legislation of 1873 and 1875, and its New South Wales counterparts of 1970 […]

Saprai and Letsas, ‘Private Law and Moral Practices Part 1: Contract’

Abstract: In this paper we argue that rights-based theories of private law individuate the various branches of private law solely on the basis of principles which confer identity on them. In doing so, they fail to take account of the relevance of other principles which are inherent to these areas. We call this ‘the myopic […]

Thomas Gallanis, ‘The Contribution of Fiduciary Law’

Abstract: Frederic Maitland, the renowned historian of English law, called the trust ‘the greatest and most distinctive achievement performed by Englishmen in the field of jurisprudence’. The trust is certainly a great achievement. Yet is the trust distinctive? Much ink has been spilled on the question. On the one hand, ‘trust-like’ devices appear in other […]

Jules Coleman, ‘Mistakes, Misunderstandings and Misalignments’

Abstract: In a recent paper appearing in the Yale Law Journal Ariel Porat argues that the tort of Negligence is beset by a range of significant misalignments that threaten to induce inefficient behavior. He argues that at least some times these misalignments can be justified on grounds of either corrective or distributive justice. In this […]