Monthly Archives: February, 2013

Mark Grady, ‘Causation and Foreseeability’

Abstract: This paper critiques the theory of causation offered by Steven Shavell and proposes a new theory that more successfully predicts the results of proximate cause cases. Two doctrines of proximate cause exist: “direct consequences” and “reasonable foresight.” We can explain case law best if we assume that both doctrines must be satisfied in order […]

Baker and Swedloff, ‘Regulation by Liability Insurance: From Auto to Lawyers Professional Liability’

Abstract: Liability insurers use a variety of tools to address adverse selection and moral hazard in insurance relationships. These tools can act on insureds in a manner that can be understood as regulation. We identify seven categories of such regulatory activities: risk-based pricing, underwriting, contract design, claims management, loss prevention services, research and education, and […]

Doug Rendleman, ‘Remedies: A Guide for the Perplexed’

Abstract: Remedies is one of a law student’s most practical courses. Remedies students and their professors learn to work with their eyes on the question at the end of litigation: what can the court do for the successful plaintiff? Remedies develops students’ professional identities and broadens their professional horizons by reorganizing their analysis of procedure, […]

John Gradwohl, ‘Legislative Enactment of Standard Forms’

“Consideration of legislative enactment of statutory forms requires a comparative analysis of current policies of consumerism with current policies underlying prohibitions on the unauthorized practice of law. In reality, that comparison is disproportionately in the hands of lawyers rather than neutrals or public consumers. Consumerism of individual lawyers and bar associations may be offset by […]

David Sohn, ‘Negligence, genuine error, and litigation’

Abstract: Not all medical injuries are the result of negligence. In fact, most medical injuries are the result either of the inherent risk in the practice of medicine, or due to system errors, which cannot be prevented simply through fear of disciplinary action. This paper will discuss the differences between adverse events, negligence, and system […]

Jonathan Stroud, ‘The Tragedy of the Commons: Toward a Hybrid Property / Relationship Understanding of Trade Secrets’

Abstract: Current theories governing trade secrets law incompletely and inadequately protect substantial investment in innovation, rendering them inefficient, reactionary, and largely illusory. Trade secret law exists to fill a gap between other forms of intellectual property and to encourage substantial investment in innovation and to recoup the time and money expended pursuing it, to the […]

Jürgen Basedow, ‘The Europeanization of private law: its progress and its significance for China’

Abstract: Ever since the Napoleonic codification of 1804, private law legislation has become a concomitant of the nation state. Although private law essentially lacks particular national characteristics, most civil codes have been enacted by national legislatures. This article gives an account of the efforts of the European Union (EU) to reduce the resulting divergences of […]

Bar-Gill and Ben-Shahar, ‘No Contract?’

Abstract: “No Contract” is on the rise in many consumer markets. Sellers are luring customers with the assurance that no commitment is required — that the consumer can terminate the service freely at any time, without paying a termination penalty. What explains the increasing prevalence of No Contract? Is it welfare enhancing? We examine the […]

The Wild Pig Theory of Law Journal Creation

“When I was a young associate at a large law firm, I discovered something interesting about partnership management structure. I called it The Wild Pig Theory of Law Firm Management. Here it is in its simplest and most elegant form: If there was a herd of wild pigs rampaging through the office, no one would […]

Jedediah Purdy, ‘Some Pluralism About Pluralism: A Comment on Hanoch Dagan’s “Pluralism and Perfectionism in Private Law”’

“Hanoch Dagan is among ‘those who think it advantageous to get as much ethics into the law as they can’, in the phrase of Oliver Wendell Holmes, Jr. His pluralism is a perfectionism for polytheists: There are many human goods, and each has its domain, including some portion of the law of property. Depending on […]