Monthly Archives: December, 2012

Linda Mulcahy, ‘The Collective Interest in Private Dispute Resolution’

Abstract: This article considers the relationship between the interests of individual litigants and the facilitation of doctrine for the collective good. More specifically, it examines the extent to which the policy and rules governing the management of civil litigation reflect a genuine commitment to the development of the common law. It is argued that litigation […]

Ignacio Marín García, ‘Enforcement of Penalty Clauses in Civil and Common Law: A Puzzle to be Solved by the Contracting Parties’

Abstract: This paper claims that there is a need for transnational rules to secure the enforcement of penalty clauses in international commercial contracts, due to the insufficiency of the contractual toolkit that parties may use to address both the clash between the civil and the common law traditions, and existing disparities among civil laws in […]

Viscusi and Hersch, ‘Assessing the Insurance Role of Tort Liability after Calabresi’

Abstract: Calabresi’s theory of tort liability (1961) as a risk distribution mechanism established insurance as an objective of tort liability. Calabresi’s risk-spreading concept of tort has provided the impetus for much of the subsequent development of tort liability, including risk-utility analysis and strict liability. Calabresi’s analysis remains a powerful basis for modern tort liability. However, […]

Reinhard Zimmermann, ‘Codification – The Civilian Experience Reconsidered on the Eve of a Common European Sales Law’

Abstract: This essay, after determining the characteristics constituting a codification, sets out the historical conditions for the creation of national codifications in the late 18th and early 19th centuries. It then deals with a number of myths and misconceptions associated with codifications. The Proposal for a Regulation on a Common European Sales Law has now […]

Steven Medema, ‘Juris Prudence: Calabresi’s Uneasy Relationship with the Coase Theorem’

Abstract: Guido Calabresi’s scholarly career has intersected the Coase theorem at several points — from an early primitive formulation of an idea similar to that elaborated by Coase in Calabresi’s pioneering 1961 paper presenting an economic analysis of tort law to applications of the theorem in contexts as varied as medical malpractice and the allocation […]

Cormac Mac Amhlaigh, ‘Defending the Domain of Public Law (against Three Critiques of the Public/Private Divide)’

Abstract: This paper explores and questions common understandings of the nature of the public and the private and its relationship to law through the public/private divide. It departs from a commonplace that the public/private divide is a relative and flexible phenomenon, which does not reveal any ‘truth’ about the world, challenging three common assumptions about […]

Serena Manzoli, ‘Hard Code Now?’

Abstract: Can a European Civil Code successfully harmonize European Private Law? No. Such a Code would be doomed to fail: being too abstract, it would be interpreted differently within different legal systems. Secondly, it would not be able to cope with legal changes, which are occurring more and more often in European private law nowadays. […]

Geoffrey Palmer, ‘Accident Compensation in New Zealand: Looking Back and Looking Forward’

Abstract: This article reflects the author’s personal experience with the development of accident compensation policy and his involvement with Sir Owen Woodhouse, chair of the Woodhouse Commission which recommended the New Zealand scheme. Reflections are made concerning the uniqueness of the New Zealand scheme in the common law world. Attention is drawn to the challenge […]

Florian Baumann and Heinrich-Klaus Heine, ‘Innovation, Tort Law, and Competition’

Abstract: In this paper, we examine the link between innovative activity on the part of firms, the competitive pressure to introduce innovations and optimal damages awards. While innovative activity brings forth valuable new products for consumers, competitive pressure in the ensuing innovation race induces firms to launch innovations too early, thereby raising the likelihood of […]

Margaret Jane Radin, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law

“Boilerplate – the fine-print terms and conditions that we become subject to when we click ‘I agree’ online, rent an apartment, enter an employment contract, sign up for a cellphone carrier, or buy travel tickets – pervades all aspects of our modern lives. On a daily basis, most of us accept boilerplate provisions without realizing […]