Monthly Archives: December, 2015

Mindy Chen-Wishart, ‘The Nature of Vitiating Factors in Contract Law’

Abstract: At common law, agreements between parties that satisfy the requirements of contract formation generate contractual rights and obligations; but only presumptively so. Such rights and obligations may be defeated, wholly or partially, by recognized vitiating factors such as misrepresentation, mistake, duress, and undue influence. What is the nature of these vitiating factors and how […]

Mindy Chen-Wishart, ‘Regulating Unfair Terms’

Abstract: Since written contracts are overwhelmingly in standard form, regulating such contracts must be one of contract law’s most important tasks. As Law Commissioner for England and Wales, Professor Beale brought his formidable scholarship, intellect and judgement to bear on the subject of unfair standard terms.The Law Commission’s avowed objective was to design a legislative […]

Allen Mendenhall, ‘Oliver Wendell Holmes Jr and the Darwinian Common Law Paradigm’

Abstract: This essay builds on recent work by Susan Haack to suggest that Oliver Wendell Holmes Jr’s conception of the common law was influenced by Darwinian evolution and classical pragmatism. This is no small claim: perceptions of what the common law is and does within the constitutional framework of the United States continue to be […]

Robert Leckey, ‘Cohabitants, Choice, and the Public Interest’

Abstract: Through the narrow entry of property disputes between former cohabitants, this chapter aims to clarify thinking on issues crucial to philosophical examination of family law. It refracts big questions – such as what people who live together should owe one another and the balance between choice and protection – through a lens of legal […]

Marco Cappelletti, ‘Punitive Damages and the Public/Private Distinction: A Comparison Between the United States and Italy’

Abstract: Punitive damages are among the most debated issues in private law theory and comparative law, as controversial judicial decisions and intense academic discussions demonstrate in the US and across Europe. Punitive damages, founded as they are on punishment and deterrence, put pressure on traditional taxonomies and invite further reflection on the interplay between public […]

Neil Foster, ‘Reforming the action for Breach of Statutory Duty in the 21st century: reconsidering the “section of the public” rule’

Abstract: The common law action for breach of statutory duty allows an intersection between private law and systems of public regulation, by allowing an individual to sue where rights created by statute have been infringed. One of the most controversial elements of the action, however, is the requirement that the relevant legislation protect a ‘section […]

Paul McCullum, ‘Bitcoin: Property or Currency?’

Abstract: Bitcoin, a virtual currency created in 2009 by an individual or group using the alias Satoshi Nakamoto, is based on a decentralized peer-to-peer system. Transactions are made with no intermediary. There are no banks involved, little to no transaction fees, and transactions are almost instantaneous. Transactions are verified by network nodes, and the network […]

Hao Jiang, ‘Chinese Tort Law between Tradition and Transplants’

Introduction: When one examines a legal system or a particular area of law in a particular jurisdiction, it is difficult to truly appreciate the reality by only looking at the official laws. When dealing with a country as old and sophisticated as China, one can easily miss the whole picture by focusing only on the […]

Anthony Gray, ‘The Liability Of Providers Of Mental Health Services in Negligence’

Abstract: In Hunter and New England Local Health District v McKenna the High Court considered the question of the liability in tort of a mental health provider for the actions of someone whom it had briefly treated. After involuntarily detaining the individual under relevant legislation, the service released the individual into the care of a […]

Paul Edward Geller, ‘Opening Dialogue on Intellectual Property’

Abstract: This dialogue, between a philosopher and a lawyer, dramatizes the economic analysis of intellectual property critically. To start, with a stylized example of such property, it illustrates problems that the law has to address as cultural goods, such as works and inventions, tend to become public goods. It goes on to unpack variables on […]