Monthly Archives: June, 2012

Gilson, Sabel and Scott, ‘Contract and Innovation: The Limited Role of Generalist Courts in the Evolution of Novel Contractual Terms’

Abstract: In developing a contractual response to changes in the economic environment, parties choose the method by which their innovation will be adapted to the particulars of their context. These choices are driven centrally by the thickness of the relevant market and the uncertainty related to that market. In turn, the parties’ choice of method […]

David Lametti, ‘Laying Bare an Ethical Thread: From IP to Property to Private Law?’

Abstract: I wish to claim that how we, as a society, deal with property resources is part of a moral context that reflects our values as a society or community. Indeed, I would go further to add that such a moral context imports what have been called the “social obligations” of property. Property rights are […]

McCormick on Sperino, ‘Dis-torting Discrimination Law’

“As courts increasingly import principles from common law torts into discrimination cases, Sandra Sperino’s new article, Discrimination Statutes, The Common Law, and Proximate Cause, is a welcome addition to a growing body of work pushing back against this trend. Her focus is on the Supreme Court’s recent forays into proximate cause in connection with federal […]

Gregory Sidak, ‘Is Harm Ever Irreparable?’

Abstract: In this lecture, I address the remedies available to an injured party who seeks redress for injury arising from the unauthorized use of his property by another, for example from patent infringement. Broadly speaking, the injured party is entitled to damages or an injunction. One requirement for receiving an injunction is a showing of […]

Choi, Gulati and Posner, ‘The Dynamics of Contract Evolution’

Abstract: Contract scholarship has given little attention to the production process for contracts. The usual assumption is that the parties will construct the contract ex nihilo, choosing all the terms so that they will maximize the surplus from the contract. In fact, parties draft most contracts by slightly modifying the terms of contracts that they […]

Call for papers: ‘The Law of Contracts or Laws of Contracts?’

“The Executive Committee of the AALS Contracts Section solicits proposals for presentations at the Section’s Annual Meeting program, The Law of Contracts or Laws of Contracts?, to be held in New Orleans, Louisiana on Saturday, January 5, 2013 … This year’s Section Meeting will revisit perennial and fundamental questions about ‘contract law’ as a legal […]

Jeffrey Sindelar, ‘Of Form and Function: Lockean Political Philosophy and Mass Tort’

Introduction: “The efficacy of tort law in the United States has been widely criticized by academics and judges. In the mass tort context, a great deal of criticism has focused on the inefficiencies created by individual claim autonomy – the notion that every person is entitled to his or her own day in court. Attempts […]

Michael Frakes, ‘Does Medical Malpractice Deter? – The Impact of Tort Reforms and Malpractice-Standard Reforms on Healthcare Quality’

Abstract: Despite the fundamental role of deterrence in the theoretical justification for medical malpractice law, surprisingly little evidence has been put forth to date bearing on its existence and scope. Using data from the 1979 to 2005 National Hospital Discharge Surveys and drawing on an extensive set of variations in various tort measures (e.g., damage […]

Bridgeman and Goldberg, ‘Do Promises Distinguish Contract from Tort?’

Abstract: Contract as Promise, Charles Fried’s modern classic, famously argued that contract law stands apart from tort law because it is grounded on the moral principle that promises must be kept. In this contribution to a symposium marking the 30th anniversary of the book’s publication, we argue that Fried’s argument is impaired by an unresolved […]

Alexander Stremitzer, ‘Negligence-Based Proportional Liability’

Abstract: Over the past four decades, in an effort to help plaintiffs, US tort statutes have expanded strict liability, and courts have relaxed the causation requirement in negligence liability by often resolving factual doubts about causation in the plaintiff’s favor. This Article argues that this trend not only contributes to phenomena such as defensive medicine […]