Monthly Archives: August, 2016

‘Unjustified Enrichment At The Crossroads’: Universidad Carlos III de Madrid, 23 September 2016

“Currently, there are two understandings of unjustified enrichment that coexist in European law without apparent conflict. On the one hand, there is the view based on a general action for unjustified enrichment, which stems from an equitable view of the law; this is the understanding that can be found, for example, in traditional Spanish case […]

Rauterberg and Talley, ‘Contracting Out of the Fiduciary Duty of Loyalty: An Empirical Analysis of Corporate Opportunity Waivers’

Abstract: For centuries, the duty of loyalty has been the hallowed centerpiece of fiduciary obligation, widely considered one of the few ‘mandatory’ rules of corporate law. That view, however, is no longer true. Beginning in 2000, Delaware dramatically departed from tradition by granting incorporated entities a statutory right to waive a crucial part of the […]

Just published: Edelman and Bant, Unjust Enrichment

Unjust enrichment is one of the least understood of the major branches of private law. This book builds on the 2006 work by the same authors, which examined the developing law of unjust enrichment in Australia. The refinement of the authors’ thinking, responding to novel issues and circumstances that have arisen in the maturing case […]

Just published: Allan Beever, A Theory of Tort Liability

This book provides a comprehensive theory of the rights upon which tort law is based and the liability that flows from violating those rights. Inspired by the account of private law contained in Immanuel Kant’s Metaphysics of Morals, the book shows that Kant’s theory elucidates a conception of interpersonal wrongdoing that illuminates the operation of […]

‘Farewell to Unjustified Enrichment’ – 2 responses

The Sophistication of Unjustified Enrichment: A Response to Nils Jansen Abstract: In this article, Professor Hector MacQueen offers a Scots law response to the recently published arguments of Professor Nils Jansen on the German law of unjustified enrichment (as to which, see Jansen, ‘Farewell to Unjustified Enrichment’ (2016) 20 Edinburgh Law Review 123). The author […]

‘English Contract Law for Civil Lawyers: on John Cartwright’s Contract Law

“One of the best-known books on comparative law published in the last century is FH Lawson’s A Common Lawyer Looks at the Civil Law (Ann Arbor, 1953). This book contains the five lectures that Oxford comparatist Harry Lawson delivered at the University of Michigan Law School. Upon re-reading this book, one is struck by the […]

‘Private Law and Asset Shielding’

“One of the central questions in the New Private Law is how ‘down-to-earth’ should legal analysis be? Regardless of one’s substantive view on this debate, there is one area in which we have been insufficiently realistic: private law enforcement. There is a real gap in our understanding of how legal norms are executed by sheriffs, […]

Choi, Gulati and Scott, ‘Evolution or Intelligent Design? The Variation in Pari Passu Clauses’

Abstract: Standard contract doctrine treats commercial contract terms as embodying a bargain between sophisticated contracting parties. In particular, contract law presumes that these parties choose their terminology carefully because they want courts or counterparts to understand the rights and responsibilities that form the basis for mutually beneficial trade. The implication of this ‘Intelligent Design’ model […]

John Cogan, ‘The Uneasy Case for Food Safety Liability Insurance’

Abstract: Foodborne illnesses sicken millions and kill thousands of Americans every year, leading many to conclude that our dysfunctional government food safety system, which still relies heavily on physical inspections of food and facilities, is incapable of protecting us. As a result, many now look to the private market for solutions to our food safety […]

Craig Purshouse, ‘Arrested Development: Police Negligence and the Caparo “Test” for Duty of Care’

Abstract: Two recent cases concerning police negligence present conflicting interpretations of the landmark case of Caparo Industries Plc v Dickman. In Robinson v Chief Constable of West Yorkshire, the English Court of Appeal held that Caparo is authority for a three-stage test of duty of care that should be applied in all cases (established and […]