Monthly Archives: July, 2013

Gerald Postema, ‘Fidelity in Law’s Commonwealth’

Abstract: The rule of law promises protection and recourse against the arbitrary exercise of power. The guiding aim of the rule of law ideal is served when law’s rule extends to all forms of power in the polity, social as well as political. This chapter defends the centrality to the rule of law of the […]

Nils Jansen, ‘The Idea of Legal Responsibility’

Abstract: The article analyses and reconstructs a broad idea of legal responsibility which underlies and normatively links tort law with the law of unjustified enrichment. The article’s central proposition is that responsibility for damage caused and enrichment-responsibility are closely interrelated. Both aspects of obligations are equally an expression of corrective justice, and ultimately serve to […]

Christopher Cifrino, ‘Virtual Property, Virtual Rights: Why Contract Law, Not Property Law, Must Be the Governing Paradigm in the Law of Virtual Worlds’

Abstract: Virtual worlds such as World of Warcraft and Second Life have recently exploded in popularity. As users create avatars and acquire virtual assets conflicts among users and between users and virtual world developers inevitably arise. These conflicts are currently resolved through the terms of End User License Agreements (EULAs) between users and developers. Many […]

Mark Geistfeld, ‘The Coherence of Compensation-Deterrence Theory in Tort Law’

Abstract: Courts and commentators regularly analyze tort law in the functional terms of compensation and deterrence, despite the apparent shortcomings of doing so. Why is the function of compensation only furthered in cases of negligence? Why not compensate a larger number of injured plaintiffs under a rule of strict liability? Is the function of compensation […]

Mark Geistfeld, ‘Fault Lines in the Positive Economic Analysis of Tort Law’

Abstract: Economists routinely engage in positive analysis to identify the efficiency properties of a practice without expressly taking any position on the normative question of whether the practice should be conducted in an efficient manner. Unlike positive economic analysis, the positive economic analysis of tort law is tied to a particular form of normative judgment. […]

Dan Priel, ‘The Law And Politics Of Unjust Enrichment’

Abstract: One of the marked differences between American private law and the private law of the rest of the common law world is the relative lack of interest in restitution in the former compared with the enthusiasm for the subject in the latter. It has recently been suggested that this difference has to do with […]

Paul Miller, ‘Justifying Fiduciary Remedies’

Abstract: Fiduciary remedies are notoriously potent. Fiduciaries who profit from their disloyalty are liable to be ordered to disgorge all of their gains, even where they act for the primary purpose of benefitting their beneficiaries. It is commonly assumed that any plausible justification for disgorgement awards will be inconsistent with formal corrective justice. Formal corrective […]

Ben McFarlane, ‘Understanding Equitable Estoppel: From Metaphors to Better Laws’

Abstract: This article has both a specific and a broader aim. First, it examines the law of promissory estoppel and of proprietary estoppel and considers if the doctrines can best be understood as part of a unified equitable estoppel. It will be argued that each of the two doctrines is itself composed of irreducibly dissimilar […]

Martha Chamallas, ‘The exceptional case of parental negligence’

“Elizabeth G Porter, Tort Liability in the Age of the Helicopter Parent, 64 Ala. L. Rev. 533 (2013). Recently, there has been a flowering of family law scholarship critically examining what Janet Halley calls ‘family law exceptionalism’, the tendency in the law to treat the family as a special realm wholly divorced from market relations […]

Giacomo Pongelli, ‘The proposal for a regulation on a common European sales law (CESL) and its gradual evolution’

Abstract: A fundamental step in the process of establishing a private European law in the matter of contracts is marked by the “Proposal for a Regulation on a Common European Sales Law” (CESL) of 11.10.2011. Not only because of the key-role of sales law as opposed to other contractual models, but also because the proposal […]