Monthly Archives: April, 2012

Justin Desautels-Stein, ‘The Market as a Legal Concept’

Abstract: In the wake of the recent financial crisis of 2008, and in the run-up to what some are calling a perfect fiscal storm, there is no shortage of commentary on the need for fundamental market reform. Though there are certainly disagreements about where the real problems are and what to do, almost all the […]

Matthew Doyle, ‘Corrective Justice and Unjust Enrichment’

Abstract: An important theoretical account of private law explains it in terms of corrective justice. Ernest Weinrib in particular has argued that private law is the instantiation of a particular form of corrective justice; one which invests the Aristotelian notion with elements of Kant’s concept of right. The early battleground for Weinrib’s theory was tort […]

Donald Gifford, ‘The Constitutional Bounding of Adjudication: A Fuller(ian) Explanation for the Supreme Court’s Mass Tort Jurisprudence’

Abstract: In this Article, I argue that the Supreme Court is implicitly piecing together a constitutionally mandated model of bounded adjudication governing mass torts, using decisions that facially rest on disparate constitutional provisions. This model constitutionally restricts common law courts from adjudicating the rights, liabilities, and interests of persons who are neither present before the […]

Douglas Laycock, ‘The Neglected Defense of Undue Hardship (and the Doctrinal Train Wreck in Boomer v. Atlantic Cement)’

Abstract: Economically minded legal scholars have devoted much attention to the comparative costs of property rules and liability rules, but little attention to the legal rule that most squarely addresses that choice — the defense of undue hardship. In general, a court will refuse an injunction, and leave plaintiff to his damage remedy, if defendant’s […]

Marco Jimenez, ‘Remedial Consilience’

Abstract: This Article provides a new way of organizing and thinking about what is perhaps the most important, useful, and ubiquitous – yet misunderstood, neglected, and underdeveloped – area in all of law: remedies. Even though remedial issues are present in every case, too little theoretical attention has been paid to them, leaving a wide […]

Difficult baptism for the CESL in IMCO

“The proposed Regulation on a Common European Sales Law (CESL) was discussed briefly on 12 April in the European Parliament’s Committee on the Internal Market and Consumer Protection (IMCO). Different views were expressed. Many were hostile to the proposal. It is clear that lively debates lie ahead …” (more) [European Private Law News, 15 April]

Jan Smits, ‘The Common European Sales Law (CESL) Beyond Party Choice’

Abstract: The Proposal for a Common European Sales Law (CESL), published by the European Commission in 2011, proposes to introduce an optional regime for cross-border sale of goods for the European Union. This contribution considers the choices that other actors than contracting parties (legislatures, courts, practitioners and academics) have to make in dealing with the […]

Baniak and Grajzl, ‘Equilibrium and Welfare in a Model of Torts with Industry Reputation Effects’

Abstract: We study the problem of torts in a framework where a firm’s accident adversely impacts all firms in the industry because of the presence of industry reputation effects. Industry reputation effects lead to interdependence among firms and give rise to strategic firm behavior. We characterize the industry equilibrium and the socially optimal industry configuration […]

Ruth Lee, ‘Unwarranted Presumptions: Common Law, Injury, and Presumed Damages for Constitutional Torts’

Abstract: This article explores the question of whether presumed damages are a good way to achieve the compensation function of constitutional torts. After the Supreme Court decided Memphis Community School District v. Stachura, circuit courts have split about whether presumed damages may be allowed, or are categorically barred. The circuit split, along with the academic […]

Douglas Laycock, ‘Restoring Restitution to the Canon’

“The Restatement (Third) of Restitution and Unjust Enrichment brings clarity and light to an area of law long shrouded in fogs that linger from an earlier era of the legal system. It makes an important body of law once again accessible to lawyers and judges. This new Restatement should be on every litigator’s bookshelf, and […]