Monthly Archives: January, 2013

Eric Descheemaeker, ‘Solatium and Injury to Feelings: Roman Law, English Law and Modern Tort Theory’

Abstract: Injuries to feelings have been a perennially difficult issue for the law of civil wrongs. The Romanist tradition pressed into service the word ‘solatium’ (solace) to designate the box in which such injuries would commonly be placed and addressed. While the concept is not formally part of the common lawyer’s toolbox, English law has […]

Helge Dedek, ‘A Particle of Freedom: Natural Law Thought and the Kantian Theory of Transfer by Contract’

Abstract: Modern contract law theorists frequently invoke Kantian ideas to conceptualize contract as a form of immediate transfer. The Kantian theory of contract itself is eclectic: Kant makes use of the main conceptual building blocks of Natural Law (in particular Grotian) contract doctrine – promise and transfer. Yet Kant re-arranges and adapts them to his […]

Kenneth Himma, ‘Toward a Lockean Moral Justification of Legal Protection of Intellectual Property’

Abstract: In this Article, I attempt to show the legitimacy of intellectual property protection by articulating a new formulation of what I call an argument from investment. The argument proceeds in Lockean fashion by identifying something of moral significance that the content creator has invested into creating new content. I then attempt to identify morally […]

Lecture: Lionel Smith on ‘Fiduciary obligations: ensuring the loyal exercise of judgement’

Private Law in Conversation: with Lionel Smith. “The aim of this series is to initiate a dialogue between different areas of private law, between private lawyers and experts in other legal fields, as well as scholars in other disciplines in the humanities and social studies. We believe that these ‘conversations’ can enrich the research and […]

Daniel Braun, ‘The Risky Interplay of Tort and Criminal Law’

Abstract: The rise of modern mass tort litigation in the U.S. has transformed punitive damages into something of a “hot button” issue. Since the size of punitive damage awards grew so dramatically in the past half century, this private law remedy has begun to involve issues of constitutional rights that traditionally pertained to criminal proceedings. […]

Jonathan Marcantel, ‘Abolishing Implied Private Rights of Action’

Abstract: For nearly a century, jurists and scholars have attempted to generate a normatively justifiable, generally applicable mechanism to evaluate implied rights of action. Yet, in each instance, the existence of the Doctrine has been presumed. Thus, in each instance, jurists and scholars have — at least implicitly — presumed that the Doctrine provides some […]

Daphna Lewinsohn-Zamir, ‘Can’t Buy Me Love: Monetary Versus In-Kind Remedies’

Abstract: The choice of appropriate remedies is a major concern in all legal spheres, yet little has been done to determine which remedies people actually prefer. Scholarly debates on this issue are typically based on theoretical arguments and intuitions rather than experimental or empirical data. It is often assumed that people are indifferent between in-kind […]

Review of Radin, Boilerplate

“A book about boilerplate? That contract with the small print that you have to sign before renting a power tool? The incomprehensible ‘Terms of Service’ agreement that Internet providers require you to claim you have read and approved? Standardized contracts are unavoidable, but they don’t seem like a subject for an important or interesting book […]

Eric Descheemaeker, ‘De La Structure De La Responsabilité : Réflexions Comparatistes Autour De Torts and Rights

Abstract: Cette variété s’intéresse à Torts and Rights de Robert Stevens, sans doute le plus important ouvrage de droit anglais de la responsabilité civile paru ces dix dernières années. La thèse de M. Stevens est que le droit des torts s’analyse dans son intégralité comme la violation de droits primaires (rights). Cette thèse a des […]

The Cameron speech and the Common European Sales Law

“Little noticed amidst the opposing cries of joy and horror that have greeted UK Prime Minister David Cameron’s speech on the future relationship between the UK and the European Union on 23 January 2013 was his renewal of support for the removal of domestic legal barriers to online trade throughout the single market …” (more) […]