Monthly Archives: August, 2012

Chris Miller, ‘Causation in personal injury after (and before) Sienkiewicz

Abstract: Three forms of ‘material contribution’ are discussed within the context of the traditional ‘but for’ test of causation. The NESS test (Necessary Element in at least one Sufficient Set) is shown to offer a more appropriate approach when causal over-determination is present as in, for instance, Fairchild and other cases involving multiple sources of […]

Jeffrey Lynch Harrison, ‘A Nihilistic View of the Efficient Breach’

Abstract: This article began as a reaction to an article by Daniel Makovits and Alan Schwartz in the Virginia Law Review, “The Myth of the Efficient Breach. . . .” In their article they offer what they call “new defenses” of the expectation interest as a contract remedy. Much of their analysis has been anticipated […]

Christopher Robinette, ‘Two Roads Diverge for Civil Recourse Theory’

Abstract: John Goldberg and Ben Zipursky’s civil recourse theory purports to be descriptive and unitary. It cannot be both. According to this theory, as a positive matter, tort law is unified by wrongs and is not designed to be used as an instrument for purposes such as compensation and deterrence. In this article, I argue […]

John Lovett, ‘Love, Loyalty and the Louisiana Civil Code: Rules, Standards and Hybrid Discretion in a Mixed Jurisdiction’

Abstract: This article examines the design of legal directives found in and surrounding the Louisiana Civil Code through the prism of the classic rules versus standards debate. The Preliminary Title portion of the article introduces the vocabulary, descriptions and justifications typically displayed in jurisprudential debates over the propriety of rules and standards. Books One, Two […]

Steel and McBride, ‘Suing for the Loss of the Right to Sue: Why Wright is Wrong’

Abstract: Sometimes a wrongdoer W1 may seek to avoid liability by claiming that the victim, V, would have been caused its loss or part of its loss anyway by another, independent, wrongdoer, W2. Most people think this is unfair. It is tempting to explain the unfairness as resting upon the fact that W1 has deprived […]

Conference: Moral Values and Private Law II, King’s College London, 13-14 December 2012

  Moral Values and Private Law II A Conference The River Room, King’s College London Thursday 13 (9.30 – 18.30) and Friday 14 (9.30 – 16.30) December 2012   The School of Law is pleased to announce the second of its Moral Values and Private Law conferences, taking place December 13 and 14 at King’s. […]

David Cheifetz, ‘The Resurfice Exception: Causation in Negligence Without Probability’

Abstract: In Resurfice Corp. v. Hanke, [2007] 1 S.C.R. 333, 2007 SCC 7, the Supreme Court of Canada created a new causation doctrine – a new test for causation – in Canadian negligence law. The new test is available to plaintiffs only in exceptional cases. Negligence and the possibility of specific factual causation may be […]

James Koessler, ‘Is There Room for the Trust in a Civil Law System? The French and Italian Perspectives’

Abstract: It is argued, through the examination of two civil law jurisdictions – France and Italy, that there is room for the trust to be translated – not transplanted – into existing civil law institutions and practice. The extent to which this is the case and the most appropriate model for this introduction will be […]

Hanoch Dagan, ‘Private Law Pluralism and the Rule of Law’

Abstract: This Essay considers whether a pluralist account of private law can, notwithstanding its multiplicity, its dynamism, and its disavowal of neutrality, comply with the rule of law. My focus will thus be on two aspects of the rule of law: as a requirement that law be capable of guiding its subjects’ behavior, and as […]

Stephen Waddams, ‘Equity in English Contract Law: the Impact of the Judicature Acts (1873–75)’

Abstract: Just before the Judicature Acts came into force, the equity bar objected that the new court would be dominated by common law judges, whose ignorance of equity would ‘endanger the very existence of Equity jurisprudence’. This objection, though ridiculed at the time, can be seen in retrospect to have had some substance. In respect […]