Monthly Archives: April, 2014

Micklitz, Svetiev and Comparato, ‘European Regulatory Private Law – The Paradigms Tested’

Abstract: The working paper collects the research presented in the second annual external workshop of the ERPL Project that took place on 16 and 17 May 2013 at the EUI in Florence. The second year of the project was devoted to the collection of empirical evidence in the various sub-projects, as well as in further […]

Adam Zimmerman, ‘The Corrective Justice State’

Abstract: Prosecutors, federal agencies, state attorneys general, and other officers in the executive branch often shape national policy through large monetary settlements with corporations. But the debate over this kind of “regulation by deal” has changed dramatically over the past decade. Although commentators once questioned whether such settlements made for good policy or exceeded officials’ […]

Carmine Conte, ‘From Only the ‘Bottom-up’? Legitimate Forms of Judicial Reasoning in Private Law’

Abstract: This article explores the dichotomy between ‘bottom-up’ and ‘top-down’ legal reasoning in the private law context. It considers the High Court of Australia’s recent allegations that: first, ‘top-down’ legal reasoning is illegitimate in private law judicial decision-making; secondly, any arguments adopting this reasoning structure are unacceptable, such as those deriving from the Birksian model […]

Peltz-Steele and Booth, ‘In Tort Pursuit of Mass Media: Big Tobacco, Big Banks, and Their Big Secrets’

Abstract: This article examines potential civil liability under the multistate norms of tort and closely related areas in the common law of the United States for the mass media re-publisher of leaked corporate secrets. The examination employs two fact patterns derived from real cases: one, contemporary, an international bank’s grievance, never resolved on the merits […]

Henry Smith, ‘The Elements of Possession’

Abstract: This paper offers a bottom-up account of possession that builds on salience based-accounts of conventions and on the NIE approach to property rights. Possession is a first cut at a legal ontology in an overall modular architecture of property. The legal ontology divides the world up into persons and things, and establishes associations between […]

Richard Marcus, ‘”American Exceptionalism” in Goals for Civil Litigation’

Abstract: American procedure has long been exceptional, a fact that baffles Americans and non-Americans alike. But focusing on the goals of civil litigation provides an important insight into why US procedure is so different. Everyone around the world wants procedure that suitably balances accuracy with economy. But American procedure seeks to enable litigants in this […]

Ricardo Pazos, ‘Behavioural Economics and Contract Law’

Abstract: Individuals make economic decisions on a daily basis that do not look rational and that sometimes turn out to be mistakes. This behaviour has a cost for each individual and for society as a whole. Behavioural law and economics identifies which mental shortcuts used by individuals in decision making are behind those mistakes. Once […]

Neil Richards, ‘Four Privacy Myths’

Abstract: Any discussion about privacy today inevitably confronts a series of common arguments about the futility of privacy in our digital age. “Privacy is Dead,” we hear, and “people (especially young ones) don’t care about privacy.” What’s more, privacy just protects bad behavior because those of us with “nothing to hide have nothing to fear.” […]

Wendy Netter Epstein, ‘Public-Private Contracting and the Reciprocity Norm’

Abstract: When governments outsource work to private entities — running prisons and schools, administering state benefits, and the like — they tend to write extremely detailed contracts. The conventional thinking is that these private entities need to be constrained lest they act opportunistically. Therefore, governments write contracts that highly specify tasks, contain robust monitoring provisions, […]

Ronald Brand, ‘The Evolving Private International Law/Substantive Law Overlap in the European Union’

Abstract: This chapter, written for the FESTSCHRIFT FÜR ULRICH MAGNUS (Sellier European Law Publishers 2014), considers three areas in which, either through legislation or through the decisions of the European Court of Justice, private international law rules found in the Brussels I Regulation have overlapped with substantive law rules to create uncomfortable – and sometimes […]