Monthly Archives: July, 2012

Roger Halson, ‘A Common Lawyer’s perspective on Contract Law Codes’

Abstract: Legal ‘codes’ are usually associated with civilian, as opposed to common law, systems of law. As a result, discussions of ‘codification’ fail to address concerns and issues particular to common law systems jurisdictions. This is the more surprising when the very word of codification was coined two hundred years ago by a distinguished English […]

Stewart Sterk, ‘Strict liability and negligence in property theory’

Introduction: … The prevailing conception of property is one of clear boundaries, easily and inexpensively ascertainable by owners and potential users. Within that conception, a strict liability regime makes considerable sense: it delegates control over resource use to owners, reducing the need for courts and potential resource users to educate themselves about the value of […]

Giesela Ruhl, ‘The Choice of Law Framework for Efficient Regulatory Competition in Contract Law’

Abstract: Regulatory competition in contract law has become a popular topic in recent years. The focus of the debate, however, has been whether regulators actually compete for application of their contract laws. In contrast, the question under which conditions this competition – if it exists – might have positive effects has largely been ignored. In […]

Kevin Collins, ‘The negative externalities of claiming property’

“In Notice Failure and Notice Externalities, Peter S Menell and Michael J Meurer coin a new term — a ‘notice externality’. In the process, they do nothing less than turn the conventional story about property rights and externalities on its head and reconceptualize many of the inefficiencies of contemporary intellectual property regimes …” (more) [ […]

Michael Wells, ‘Civil Recourse, Damages-as-Redress, and Constitutional Torts’

Introduction: In Torts as Wrongs, Professors John Goldberg and Benjamin Zipursky discuss the connection between “tortious wrongdoing” and “civil recourse.” Their civil recourse theory “sees tort law as a means for empowering individuals to seek redress against those who have wronged them.” Goldberg and Zipursky show that modern tort theory is dominated by “loss allocation,” […]

Martin Dixon, ‘Confining and Defining Proprietary Estoppel: The Role of Unconscionability’

Abstract: The paper analyses the role of unconscionability in the definition of estoppel and argues that it is essential to understand its role and its meaning. Dixon, Martin John, Confining and Defining Proprietary Estoppel: The Role of Unconscionability (July 28, 2010).

Tobias Barkley, ‘Discretionary Interests and Rights to Replace Trustees: Can they be Property?’

Abstract: … This thesis concerns the implications of a type of asset protection trust where one of the discretionary beneficiaries is given the right to replace the trustee. This “controlling” beneficiary is in an economically advantageous position because he or she has the choice to appoint a trustee who is likely, but not obliged, to […]

Goldberg and Sitkoff, ‘Torts and Estates: Remedying Wrongful Interference with Inheritance’

Abstract: This paper examines the nature, origin, and policy soundness of the tort of interference with inheritance. We conclude that the tort should be repudiated because it is conceptually and practically unsound. Endorsed by the Restatement (Second) of Torts and recognized by the U.S. Supreme Court in a recent decision, the tort has been adopted […]

Jan Smits, ‘Rethinking Methods in European Private Law’

Abstract: It is well known that there is a gap between comparative law theory and the way in which comparative lawyers actually compare. This contribution was written for a book that attempts to bridge the gap between theory and practice in comparative legal studies. It offers a search for the methodological underpinnings of the author’s […]

Vaughan Black, ‘Cultural Thin Skulls’

Abstract: I take as my text a number of recent court decisions in tort actions, about thirty of them. What characterizes the judgments I examine here is that in them claimants have argued (generally, though not invariably, with success) that something in their culture, their religion or both entitles them to either a finding of […]