Monthly Archives: November, 2013

David Ellerman, ‘On Property Theory’

Abstract: A theory of property needs to give an account of the whole life-cycle of a property right: how it is initiated, transferred, and terminated. Economics has focused on the transfers in the market and has almost completely neglected the question of the initiation and termination of property in normal production and consumption (not in […]

Nancy Kim, ‘Is There a Digital Solution to Wrap Contracts?’

“I’m thrilled to have the opportunity this week to engage with an outstanding line-up of scholars on the topic of wrap contracts. In today’s post, I will respond to posts by Ryan Calo and Miriam Cherry. Miriam Cherry observes that wrap contracts raise much of the same issues raised by contracts of adhesion and my […]

Just published: Jonathan Morgan, Contract Law Minimalism: A Formalist Restatement of Commercial Contract Law

“Commercial contract law is in every sense optional given the choice between legal systems and law and arbitration. Its ‘doctrines’ are in fact virtually all default rules. Contract Law Minimalism advances the thesis that commercial parties prefer a minimalist law that sets out to enforce what they have decided – but does nothing else. The […]

David Super, ‘A New New Property’

Abstract: Charles Reich’s visionary 1964 article, The New Property, paved the way for a revolution in procedural due process. It did not, however, accomplish Reich’s primary stated goal: providing those dependent on government assistance the same security that property rights long have offered owners of real property. As Reich himself predicted, procedural rights have proven […]

Wrap Contracts Symposium, Part IV: Juliet Moringiello on “Wrap” Terminology: Needlessly Confusing or Useful Analytical Tool?

“Yes, we said it. As Prof. Nancy Kim notes in her terrific new book Wrap Contracts: Foundations and Ramifications, my co-author Bill Reynolds and I have argued that the use of the terms ‘clickwrap’ and ‘browsewrap’ to describe electronically-presented contract terms might be needlessly confusing, and that the terms themselves may even be irrelevant. Yet […]

Wrap Contracts Symposium, Part III: Woodrow Hartzog, Wrap Contracts as Mediators of Social Interaction

“Professor Kim’s book is an extremely valuable addition to the literature. Kim adeptly distinguishes wrap contracts from traditional contracts. Perhaps more importantly, Kim distinguishes wraps from boilerplate paper contracts. In this review I will argue that Kim’s case for wrap exceptionalism could be taken even further for parties in highly interactive relationships, such as the […]

David Beckstead, ‘The Influence of Freedom of Speech on Tort Law: Where to Draw the Line?’

Abstract: The Constitutions of both Canada and the United States protect the freedom speech. Similarly, the common law in both countries allows for the recovery of damages, under certain conditions, for the utterance of harmful speech. The judiciary is tasked with the difficult assignment of determining the appropriate line to draw between competing interests and […]

David Beckstead, ‘Substantive Unfairness of Pre-Dispute Arbitration Clauses in Consumer Contracts: The Argument for the Unconscionability Doctrine’

Abstract: Development of the doctrine of unconscionability in Canadian common law provinces would serve as an effective mechanism to render pre-dispute arbitration clauses unenforceable in the context of consumer contracts. While laws which facilitate the commercial arbitration process are generally seen as a favourable development, the negative backlash to arbitration occurs because it is often […]

Harm Schepel, ‘Freedom of Contract in Free Movement Law: Balancing Rights and Principles in European Public and Private Law’

Abstract: The right to free movement embodies both the power to interfere with contractual freedom and contractual freedom itself. Neither is absolute, and the realization of either needs justification in situations of conflict in light of the impact it has on the realization of the other. Where free movement rights embody fundamental rights capable of […]

Kenneth Ching, ‘Contract as Shank’

“A contract is like a screwdriver. A screwdriver can be used for turning screws and opening cans of paint. Or it can be used as a dagger in mortal prison combat. Likewise, a contract can ‘facilitate an efficient private ordering of society’, but it can also be ‘a means of social dominance and oppression’. Law […]