Monthly Archives: November, 2015

‘Interpretation and construction 2: Samuel Williston’

“In my last post on the interpretation-construction distinction I described Francis Lieber’s supplemental view of construction, which can be found in his 1839 book, Legal and Political Hermeneutics. Lieber’s view is characterized by two claims. First, construction is supplemental: it steps in only when interpretation runs out. Second, the activity of construction is for the […]

‘Property Law, Law & Economics, and Means for Reaching Distributive Goals’

Lee Anne Fennell and Richard H McAdams, The Distributive Deficit in Law and Economics, Minnesota Law Review (forthcoming 2015), available at SSRN. Lee Anne Fennell and Richard H McAdams’ The Distributive Deficit in Law and Economics is framed as a law and economics article but makes a significant contribution to property theory. The Distributive Deficit […]

Bram Akkermans, ‘The Numerus Clausus of Property Rights’

Abstract: The numerus clausus of property rights is one of the fundamental principles of property law (Van Erp 2006a; Akkermans 2008). It refers to the idea that both the number and content of property rights is limited and is traditionally placed in contrast to party autonomy that reigns in contract law. Property rights are special […]

Oosthuizen and Carstens, ‘Medical Malpractice: The Extent, Consequences and Causes of the Problem’

Abstract: In recent years South Africa has seen a sharp increase in medical malpractice litigation. A number of factors have contributed to this increase and doctors as well as other healthcare providers have been profoundly affected thereby. It seems as though the proliferation of claims for the adverse consequences of medical intervention, which has been […]

Chunlin Leonhard, ‘Illegal Agreements and the Lesser Evil Principle’

Abstract: This Article builds on the existing scholarship on illegal agreements and joins the search for ‘consistency and rationality’. It offers the insight that, contrary to common belief, courts’ approach to illegal agreements shows a consistent pattern. The author advocates for an explicit recognition of the lesser evil principle in private law, drawing upon courts’ […]

James Goudkamp, ‘The Doctrine of Illegality: A Private Law Hydra’

Abstract: This article offers an analysis of the decisions of the United Kingdom Supreme Court in Hounga v Allen, Les Laboratoires Servier v Apotex Inc and Jetivia SA v Bilta (UK) Limited (in liquidation. It seeks to understand the reasons given in those cases and their implications. It will be argued that the law in […]

Just Published: Anna Beckers, ‘Enforcing Corporate Social Responsibility Codes – On Global Self-Regulation and National Private Law’ – 20% discount

Hart Publishing is delighted to announce the publication of ‘Enforcing Corporate Social Responsibility Codes: On Global Self-Regulation and National Private Law’ by Anna Becker. We are pleased to offer you 20% discount on the book. To order online with your 20% discount please click on the link below the title and then click on the […]

‘Interpretation and Construction 1: Francis Lieber’

“In several posts on DIRECTV v Imburgia (here, here and here), I suggested that the interpretation-construction distinction illuminates some of the Supreme Court’s recent arbitration cases. The interpretation-construction distinction has recently been receiving more attention from con law theorists than from contract theorists. (See, eg, here, here and here.) I’ve been working on a larger […]

Hanoch Dagan, ‘Between Regulatory and Autonomy-Based Private Law’

Abstract: The European Regulatory Private Law (ERPL) Project offers a provocative and exciting perspective on private law, which upsets conventional wisdoms and challenges us to rethink some of the most fundamental premises of our understanding of private law. This Essay addresses three core pillars of the ERPL Project: its reliance on the notion of regulated […]

Paul Bernal, ‘The Right to Be Forgotten in the Post-Snowden Era’

Abstract: The revelations of Edward Snowden of at least part of the true extent of the gathering and processing of communications data by the intelligence services of many nations, most notably the US and the UK, sent shockwaves through the Internet, not least amongst those concerned with privacy. Though the information revealed relates primarily to […]