Monthly Archives: November, 2012

John Tarrant, ‘Obligations as Property’

Abstract: A widely asserted proposition is that all property rights are rights in rem and that rights in personam, such as debts and bank accounts, are not property rights. The proposition was advocated by John Austin based on his interpretation of Roman law. The obvious difficulty with the proposition is that it is irreconcilable with […]

Christine Schwöbel, ‘Whither the private in global governance?’

Abstract: In international legal scholarship, global governance ideas are being framed exclusively with recourse to public law – at the expense of private law. In this article, I question this prioritization of public law and the obscuring of private law conceptions and methodologies. It appears that the obscuring of private law is occurring in theoretical […]

Troy Rule, ‘Property Rights and Modern Energy’

Abstract: Property law has evolved and adapted throughout its existence in response to social and technological change. In this era of increasing focus on sustainable energy, new property rights disputes arising from innovations in the energy industry are once again stretching the bounds of property law. As novel energy strategies spread across the country, they […]

Peter Handford, ‘Intentional Negligence – A Contradiction in Terms’

Abstract: The area of torts dealing with the intentional and negligent infliction of personal injury is characterised by the interplay between the torts of trespass to the person, negligence, and the rule in Wilkinson v. Downton. However, negligence is the dominant tort. Beginning as a cause of action restricted to indirect injuries, in 1833 it […]

Polinsky and Shavell, ‘Costly Litigation and Optimal Damages’

Abstract: A basic principle of law is that damages paid by a liable party should equal the harm caused by that party. However, this principle is not correct when account is taken of litigation costs, because they too are part of the social costs associated with an injury. In this article we examine the influence […]

Evan Fox-Decent, ‘Unseating Unilateralism’

Abstract: Two sets of literature dominate academic discussion of the rule of law. The first is the Fuller/Hart/Raz literature of legal philosophy that focuses on Fuller’s internal morality of law and the framework it supplies for the exercise of agency. The second is the public law literature descended from A.V. Dicey that celebrates the rule […]

Nicholas Blomley, ‘Performing Property, Making the World’

Abstract: Scholars under the ‘Progressive Property’ banner distinguish between dominant conceptions of property, and its underlying realities. The former, exemplified by Singer’s ‘ownership model’, is said to misdescribe extant forms of ownership and misrepresent our actual moral commitments in worrisome ways. Put simply, it is argued that our representations of property’s reality are incorrect, and […]

Linda Mullenix, ‘Nine Lives: The Punitive Damage Class Symposium: “Aggregate Litigation Since Ortiz v. Fibreboard“‘

Abstract: The concept of the punitive damage class has a long and dubious lineage, extending back more than thirty years. During the 1980s and, especially, the 1990s the concept of the punitive damage class excited plaintiffs’ attorneys, inspired countless academics, riveted at least a few 846 defense counsel, and caught the attention of a scattering […]

Gregory Keating, ‘Is the Role of Tort to Repair Wrongful Losses?’

Abstract: For more than a generation, corrective justice theories of tort have been the principal alternative to economic theories. Corrective justice conceptions claim (as Jules Coleman, a leading corrective justice theorist puts it) that “tort law is best explained by corrective justice” because “at its core tort law seeks to repair wrongful losses.” This thesis […]

Conference: Contract as Public Law Conference at Emory: Call for proposals

“The process of privatization relies heavily upon contracting in a variety of forms, from outsourcing or the complete transfer of functioning to a private entity to the creation of public-private partnerships. The bargains that are struck are generally justified in terms of efficiency and effectiveness, and work to funnel social assets and obligations into private […]