Monthly Archives: August, 2013

Just published: Merkin and Steele, Insurance and the Law of Obligations

“It is widely acknowledged that insurance has a major impact on the operation of tort and contract law regimes in practice, yet there is little sustained analysis of their interaction. The majority of academic private lawyers have little knowledge of insurance law in its own right, and the amount of discussion directed to insurance in […]

Anne Bloom, ‘The Radiating Effects of Torts’

Abstract: The radiating effects of torts should be of great interest. As in other areas of the law, tort practices generate normative messages that influence public discourse and behavior. Somewhat curiously, however, scholarly inquiry into these radiating effects has been limited largely to questions about deterrence. The aim of this essay is two-fold. The first […]

Alexander Loke, ‘Tainting illegality’

Abstract: The assertion of contractual rights may be defeated by the illegality defence, not because their creation is offensive to public policy but by reason of an illegality that ‘taints’ these rights. To date, no analytical framework has been developed for understanding how these tainting rules are connected to one another. The Tainting Illegality Framework […]

Kritzer, Liu and Vidmar, ‘An Exploration of “Non-Economic” Damages in Civil Jury Awards’

Abstract: Using three primary data sources plus three supplemental sources discussed in an appendix, this paper examines how well non-economic damages could be predicted by economic damages and at how the ratio of non-economic damages to economic damages changed as the magnitude of the economic damages awarded by juries increased. We found a mixture of […]

Revisiting the Contracts Scholarship of Stewart Macaulay, Post VI: Jonathan Lipson

“Relational Reorganization. Although Stewart Macaulay’s contributions to the literature on relational contracting cannot be overstated — for practical purposes, he invented the field — its insights have been absent from an equally important body of literature that also looks at contracts in action: That of bankruptcy reorganization. At first glance, the reasons for the disconnect […]

Sandy Steel, ‘Private Law and Justice’

Abstract: This article is in two parts. The first part critically examines the foundations of Weinrib’s theory of corrective justice. It casts doubt upon his claim that private law faces incoherence if it is not entirely based upon corrective justice and questions the normative appeal of that view. The second part makes a variety of […]

Andrea Boyack, ‘The Three and a Half Minute Transaction: What Sticky Boilerplate Reveals About Contract Law and Practice’

Abstract: The Three and a Half Minute Transaction: Boilerplate and the Limits of Contractual Design, by Mitu Gulati and Robert E Scott, is a cautionary tale about modern legal practice where the protagonist is the standard sovereign debt contract. The book discloses an undeniable flaw in sovereign bond boilerplate (the widely used pari passu clause) […]

Hadfield and Bozovic, ‘Scaffolding: Using Formal Contracts to Build Informal Relations to Support Innovation’

Abstract: In a study that follows in Macaulay’s (1963) footsteps, we asked businesses what role formal contract law plays in managing their external relationships. We heard similar answers to the ones Macaulay obtained fifty years ago from companies who described important but non-innovation-oriented external relationships. But we also uncovered an important phenomenon: companies that described […]

Revisiting the Contracts Scholarship of Stewart Macaulay, Post V: Gillian Hadfield

“Maybe Contract Law Isn’t Dead After All. In 1963 Stewart Macaulay asked: what good is contract law? His interviews with business(men) in a range of companies — including giants like General Electric, SC Johnson and Harley-Davidson — suggested the answer was ‘not much’. He was repeatedly told that in practice, formal contracts were rarely drawn […]

Bram Akkermans, ‘Standardisation of Property Rights in European Property Law’

Abstract: European Property Law is in development. In the last decades it has been a study of theory rather than of practice as it is usually considered too diverse and too much differing between countries to ever achieve meaningful results when trying to seek harmonisation. Recently, however, property law is moving to the center of […]