Monthly Archives: February, 2014

Neil Wilkof, ‘Theories of intellectual property: Is it worth the effort?’

“Should one care about theories of intellectual property? A decade ago, Professor William Fisher, of Harvard University, made a challenging attempt to answer ‘yes’, in a book chapter entitled Theories of Intellectual Property. While never quite distinguishing between a philosophy, an approach, and a theory of intellectual property, Fisher identifies four analytical constructs, which we […]

Jaap Hage, ‘On Which Level Should Private Law in Europe Be Created?’

Abstract: In this paper an attempt is made to answer the question what is the proper level of regulation for private law in Europe. It starts with a methodological section that explains how this question can be made tractable by considering only three plausible alternative levels: those of the EU, national states and private agents […]

Lynda Lee Butler, ‘The Resilience of Property’

Abstract: Resilience is essential to the ability of property to face transforming social and environmental change. For centuries, property has responded to such change through a dialectical process that identifies emerging disciplinary perspectives and debates conflicting values and norms. This dialectic promotes the resilience of property, allowing it to adapt to changing conditions and needs. […]

Jacobia and Weissa, ‘Allocation of fault in contract law’

Abstract: In this paper we consider situations in which the parties are in disagreement about the allocation of a certain risk, and either party could have acted ex-ante to prevent breach, to lower its probability or to insure against it (“least-cost avoidance” in tort law), but neither did so. When the state-of-the-world is revealed there […]

William Woodward Jr, ‘Restitution Without Context: An Examination of the Losing Contract Problem in the Restatement (Third) of Restitution’

Abstract: Professor Stewart Macaulay wondered in 1959 whether restitution, a set of doctrines applied in a wide range of fact-laden contexts, could be captured in a restitution casebook that, inevitably, would strip away much of the context for the law’s application. Restitution reappeared early in this new Century when the American Law Institute decided to […]

Elizabeth Rosenblatt, ‘Fear and Loathing: Shame, Shaming, and Intellectual Property’

Abstract: This paper investigates the relationship between intellectual property protection, shame, and shaming. Although some scholars have examined shame and shaming as they relate to criminal law and behavior, none have considered how shame and shaming govern intellectual property and copying behavior. This paper identifies and focuses on two significant intersections: First, shame shapes the […]

Justin Silver, ‘Houston, We Have a (Liability) Problem’

Abstract: The development of private manned space flight is proceeding rapidly; there are proposals to launch paying passengers before the end of 2014. Given the historically dangerous nature of space travel, an accident will probably occur at some point, resulting in passengers’ injury or death. In the event of a lawsuit stemming from such an […]

Dan Burk, ‘Response: Means and Meaning in Patent Remedies’

Introduction: In his article, Purging Patent Law of ‘Private Law’ Remedies, Professor Sichelman offers a welcome and useful perspective on the reform of patent remedies. His general thesis — that patent law’s policy of promoting innovation must take precedence in shaping the outcome of patent cases — is surely correct, and his goal of ensconcing […]

Bayern and Eisenberg, ‘The Expectation Measure and its Discontents’

Introduction: Under the indifference principle in contract law, the remedies for breach of contract should ‘leave the [promisee] absolutely indifferent, in subjective terms, between having the defendant breach and pay damages or having the defendant perform’. This principle underlies the expectation-based remedies that are central to contract law — in particular, the expectation measure of […]

Theoretical Inquiries in Law – Special number on the Public/Private distinction

The Public/Private Distinction Now: The Challenges of Privatization and of the Regulatory State Shamir, Hila State Legalism and the Public/Private Divide in Chinese Legal Development Yu, Xingzhong “Private” Means to “Public” Ends: Governments as Market Actors Hockett, Robert C. / Omarova, Saule T. Rethinking Settlement Bilsky, Leora / Fisher, Talia The Multinational Corporation as “the […]