Monthly Archives: October, 2014

Dorfman and Jacob, ‘The Fault of Trespass’

Abstract: The conventional wisdom has it that a property owner assumes virtually no responsibility for guiding others in fulfilling their duties not to trespass on the former’s property. In other words, the entire risk of making an unauthorized use of the property in question rests upon the duty-holders. This view is best captured by the […]

‘Tort Liability as Compensation’

Mark Geistfeld, Compensation as a Tort Norm, in Philosophical Foundations of the Law of Torts (John Oberdiek ed, 2014). For more than a decade, Mark Geistfeld has been developing an original and sophisticated theory of tort. Professor Geistfeld’s work has been characterized by a remarkable and admirable confluence of four characteristics. First, the work is […]

Public lectures: The Jurisprudence of Corrective Justice, by Professor Ernie Weinrib – Oxford, Tuesday 4 November to Wednesday 12 November 2014

The Clarendon Law Lecture Series 2014 in conjunction with Oxford University Press – ‘The Jurisprudence of Corrective Justice’. Speaker: Professor Ernie Weinrib. Venue: Oxford Law Faculty. There will be a series of three lectures given by Professor Ernie Weinrib which will be as follows: Lecture One – ‘Structure’ – Tuesday 4th November; Lecture Two – […]

Eliza Karolina Mik, ‘Subject to Review? Consideration, Liquidated Damages and the Penalty Jurisdiction’

Abstract: The paper examines the relationship between what seem to be basic principles in contract law: “consideration need not be adequate” and “the rule against penalties applies only to sums payable on breach”. The ‘reluctant inspiration’ lies in the recent Australian case of Andrews v. Australia and New Zealand Banking Group Ltd, which establishes that […]

James Dawson, ‘Contract After Concepcion: Some Lessons from the State Courts’

Abstract: This Comment discusses the state courts’ response to AT&T Mobility LLC v Concepcion. In that case, the United States Supreme Court held that the Federal Arbitration Act preempts the use of unconscionability doctrine to invalidate arbitration clauses that foreclose classwide remedies. Part I of this Comment catalogues recent state-court approaches to forced-arbitration clauses, focusing […]

Herbert Hovenkamp, ‘Progressive Legal Thought’

Abstract: A widely accepted model of American legal history is that “classical” legal thought, which dominated much of the nineteenth century, was displaced by “progressive” legal thought, which survived through the New Deal and in some form to this day. Within its domain, this was a revolution nearly on a par with Copernicus or Newton. […]

Maria Linda Ontiveros, ‘The Fundamental Nature of Title VII’

Abstract: This article explores the fundamental nature of Title VII and argues that Title VII is a statute designed to protect the right to own and use one’s own labor free from discrimination in order to provide meaningful economic opportunity and participation. This conclusion is based upon three different types of analysis: the elements approach; […]

Robyn Carroll, ‘When “Sorry” is the Hardest Word to Say, How Might Apology Legislation Assist?’

Abstract: Apology legislation refers generally to statutory provisions that remove legal disincentives to offering an apology in the context of civil disputes. The legislation clarifies and, in many cases, alters what would otherwise be the legal consequences of an apology, principally by reforming the law of evidence. The aim of apology legislation, in general terms, […]

Martin Redish, ‘Rethinking the Theory of the Class Action: The Risks and Rewards of Capitalistic Socialism in the Litigation Process’

Abstract: Despite all of the controversial scholarship that has been published in recent years concerning the modern class action, it is both puzzling and disappointing how little of it has sought to grasp the deep structural precepts underlying the device. All too often, the scholarly debate, not to mention the political debate, has broken down […]

Renee Lettow Lerner, ‘The Failure of Originalism in Preserving Constitutional Rights to Civil Jury Trial’

Abstract: The Federal Bill of Rights and state constitutions rely heavily on procedural protections, especially jury rights. Supporters of these rights at the founding praised the jury in extravagant terms, and many members of the legal profession continue to do so today. Yet civil and criminal jury trials are vanishing in the United States. The […]