Monthly Archives: October, 2013

John Goldberg, ‘Did You Get The Message’

“Scott Hershovitz, ‘Tort as a Substitute for Revenge’, in Philosophical Foundations of the Law of Torts (John Oberdiek ed., forthcoming 2014) available at SSRN. Modern tort theory begins with Holmes, who was eager to recast the old law of ‘trespass’ on suitably modern terms. Back when people were superstitious and quick to blame, tort could […]

Ori Herstein, ‘Responsibility in Negligence: Discussion of From Normativity to Responsibility

Abstract: This essay explains, expands, develops, and reflects on the Razian theory of responsibility and identity, focusing primarily on responsibility for negligent actions. I begin with setting the stage for understanding the importance of Joseph Raz’s theory and what motivates it. Next, the essay lays out the theory itself, and offers some elaboration on some […]

Deborah Post, ‘Contract and Dispossession’

Abstract: In the not so distant past, law students often opened their Contracts casebooks to find a quotation from Sir Henry Maine, ‘The movement of progressive societies has hitherto been a movement from Status to Contract’. The placement of this quotation at the beginning of a Contracts book sets the tone for the semester or […]

Sebok and Wendel, ‘Duty in the Litigation Investment Agreement: The Choice between Tort and Contract Norms When the Deal Breaks Down’

Abstract: Litigation investment, which is also known as ‘litigation finance’ or ‘third party litigation finance’, has grown in importance in many common law and civilian legal systems and has come to the United States as well. While many questions remain about both legality and social desirability of litigation finance, this paper starts with the assumption […]

Hector MacQueen, ‘The Law of Obligations in Scots Law’

Abstract: A historical study of the structure of the law of obligations in Scots law, with especial reference to the law of contract. MacQueen, Hector Lewis, The Law of Obligations in Scots Law (October 21, 2013). Reiner Schulze and Fryderyk Zoll (eds), The Law of Obligations in Europe: A New Wave of Codifications (Sellier European […]

Richard Epstein, ‘Intellectual Property and the Law of Contract: The Case Against “Efficient Breach”‘

Abstract: In general sound general principles of contract law should carry over more or less seamlessly to the licensing of intellectual property. Those basic principles caution against attacks on standard form contracts that often contain liquidated damage provisions. This paper shows why over a broad range of cases involving two or more parties these liquidated […]

Carol Rose, ‘Foreword: A Real Property Lawyer Cautiously Inspects the Edges of Intellectual Property’

Abstract: The contributing scholars in this volume take up some of the most hotly contested issues in intellectual property, as revealed in their commentaries on a set of intriguingly ambivalent cases. This Foreword gives the perspective of a “real” (as in real estate) lawyer on these edgy IP materials. The cases and commentaries raise a […]

Tadas Klimas, ‘Is the French Concept of Cause in Brazil’s Civil Code?’

Abstract: Cause is a condition for the formation of a contract in the French and Quebec civil codes. Why does it not appear in Brazil’s code? Is this merely a mistake? Is this meant to achieve different results than in codes with “cause”? A comparative investigation reveals that Brazil’s civil code’s authors took the anti-causalist […]

Mindy Chen-Wishart, ‘In Defence of Consideration’

Abstract: Much of the scholarship against the consideration doctrine is explicitly or implicitly based on the monistic deontological view that morality and respect for individual autonomy require the enforcement of promises, whether supported by consideration or not. A different picture emerges when a richer conception of autonomy is recognised and other legitimate concerns of state […]

Eyal Zamir, ‘Contract Law and Theory – Three Views of the Cathedral’

Abstract: This is a review of three new books on US contract law and theory: Brian H. Bix, Contract Law: Rules, Theory, and Context (Cambridge 2012); Douglas G. Baird, Reconstructing Contracts (Harvard 2013); and Melvin A. Eisenberg, Foundational Principles of Contract Law (Oxford, forthcoming 2014). The Review discusses, among other things, disclosure duties, standard-form contracts, […]