Monthly Archives: March, 2012

Giesela Ruhl, ‘The Common European Sales Law: 28th Regime, 2nd Regime or 1st Regime?’

Abstract: The article analyses three basic models that can be applied to determine the relationship between the proposed Common European Sales Law (CESL) and the rules of private international law: the ‘28th regime-model’, the ‘2nd regimemodel’, and the ‘1st regime-model’. It argues that both the ‘28th regime-model’ and the model favoured by the European Commission, […]

Ruth Towse, ‘What We Know, What We Don’t Know, and What Policy-makers Would Like Us to Know About the Economics of Copyright’

Abstract: There are many gaps between what economists know and what they don’t know. This article reviews this situation in the light of what policy-makers say they want to know about the economic effects of copyright. The article sets out what I see as misunderstandings on the part of policy-makers as to what economics can […]

Chantal Mak, ‘Europe-Building Through Private Law – Lessons from Constitutional Theory’

Abstract: Questioning the link between private law and the nation-state that is implied by nationalist perceptions of the law, this paper seeks to find support for a transnational (Europeanist, constitutional-patriotist or cosmopolitan) view on private law in constitutional theory. Normative theories of constitutionalism have a bearing on questions of European private law insofar as private […]

Jeremy Sheff, ‘Marks, Morals, and Markets’

Abstract: Trademark law depends for its justification on economic arguments that cannot account for much of the law’s recent development, nor for mounting empirical evidence that consumer decisionmaking is inconsistent with assumptions of rational choice. But the only extant theoretical alternative to economic analysis is a Lockean “natural rights” theory that scholars have found even […]

Frank Emmert, ‘The Draft Common Frame of Reference (DCFR) – The Most Interesting Development in Contract Law Since the Code Civil and the BGB’

Abstract: The paper introduces the DCFR, which is essentially the draft of a future EU Code of Obligations and works a bit like the UCC in the USA, as a model commercial code. After a brief historic justification of the draft, there is a presentation of what the DCFR can and cannot do at the […]

Miller and Perry, ‘Good Faith Revisited’

Abstract: This Article aims to unveil and undermine one of the most resonant truisms in contract law. It shows that a dominant criterion used by courts and academics in applying the omnipresent and overarching principle of good faith is essentially flawed. Our argument is innovative in at least four respects. First, it uncovers a common […]

Larissa Katz, ‘”Governing Through Owners”: How and Why Formal Private Property Rights Enhance State Power’

Abstract: A system of formal private property rights is a network of offices through which states can allocate responsibility to individuals on a mass scale for a wide variety of tasks, including some of the state’s core governance functions. A system of property rights do not straightforwardly constrain the state; in some contexts, they enhance […]

Chang and Smith, ‘An Economic Analysis of Civil versus Common Law Property’

Abstract: Common law and civil law property appear to be quite different, with the former emphasizing pieces of ownership called estates and the latter focusing on holistic ownership. And yet the two systems are remarkably similar in their broad outlines, for functional reasons. This paper offers a transaction cost explanation for the practical similarity and […]

Geoffrey Rapp, ‘Torts 2.0’

Abstract: In this Symposium Essay, I analogize the American Law Institute’s Restatement (Third) of Torts to “Web 2.0.” The story of the Third Restatement and its progenitors bears a remarkable resemblance to the great technological revolution of the last century’s end: the World Wide Web. Web. 1.0, the first generation of internet activity, treated users […]

Green and Gilead, ‘Maligned Misalignments’

Abstract: This article responds to a fascinating and provocative article entitled “Misalignments in Tort Law,” authored by Ariel Porat and published at 121 Yale L.J. 82 (2011). Porat argues that the rule embodied in Section 29 of the Restatement (Third) of Torts: Liability for Physical and Emotional Harm creates a doctrinal misalignment that should be […]