Monthly Archives: September, 2016

Donald Smythe, ‘Reasonable Standards for Contract Interpretation Under the CISG’

Abstract: The United Nations Convention on Contracts for the International Sale of Goods offers the promise of harmonizing international sales law and facilitating international trade and global commerce. But there is a ‘homeward trend bias’ that may encourage domestic courts to construe the gaps in the CISG broadly and fill them with non-uniform domestic legal […]

Donald Smythe, ‘The Illiberty of Contract’

Abstract: The term ‘liberty of contract’ is usually associated with the doctrine that the due process clause of the United States Constitution prohibits or should prohibit the State from regulating contracts between private individuals. Many libertarians and free-market advocates embrace the liberty of contract doctrine because they are averse to State interference with private market […]

Francois du Bois, ‘Human Rights and English Contract Law: Parallel Worlds?’

Abstract: This paper examines the influence of fundamental rights on English contract law since the enactment of the Human Rights Act 1998. Its aims are two-fold – to provide a first comprehensive analysis of this phenomenon in English law and to tease out the factors which have shaped its contours. The paper accordingly explores each […]

Deborah DeMott, ‘Culpable Participation in Fiduciary Breach’

Abstract: This essay makes a case for the salience of tort law to fiduciary law, focusing on actors who culpably participate in a fiduciary’s breach of duty, whether by inducing the breach or lending substantial assistance to it. Although the elements of this accessory tort are relatively settled in the United States, how the tort […]

Goldberg and Zipursky, ‘The Supreme Court’s Stealth Return to the Common Law of Torts’

Abstract: In its famous 1938 Erie decision, the US Supreme Court deemed itself without power to make general common law. Yet while the rule of Erie remains, the Court has strayed from its spirit. Using two lines of cases as representative of a larger trend – one involving First Amendment limits on claims for defamation, […]

Fabian Junge, ‘The Necessity of European Harmonization in the Area of Trade Secrets’

Abstract: Albeit often being considered as ugly duckling or stepchild of intellectual property in the past, the subject of trade secret protection has increasingly gained more and more importance. The desire to guard the sweeping economic value of intellectual property, and especially of trade secrets, prompted action by the European legislator. The recently adopted Trade […]

Max Raskin, ‘The Law of Smart Contracts’

Abstract: Over the past few years a new technology called smart contracts has proliferated. These contracts are agreements where execution has been made automatic through the use of computers. This article examines smart contracts from a legal perspective, both their operation and place in existing contract law. The article concludes that smart contracts are simply […]

Sergio Mittlaender Leme de Souza, ‘Morality, Compensation, and the Contractual Obligation’

Abstract: This article presents empirical estimates that two thirds of the people perceive breach of contract followed by compensation for the promisee as not immoral. In the absence of compensation, it reveals that most individuals perceive the moral value of breach depending on the consequences thereof, with the unfairness of the outcome – and not […]

Elizabeth Rowe, ‘Unpacking Trade Secret Damages’

Abstract: This study is the first to conduct an in-depth empirical analysis of damages in trade secret cases in the US. From an original data set of cases in federal courts from 2000 to 2014, I assess the damages awarded on trade secret claims. In addition, a wide range of other variables are incorporated into […]

‘Harvard Law School’s Private Law Workshop: Hanoch Dagan and Michael Heller, The Choice Theory of Contracts’

Let’s put freedom back into ‘freedom of contract’. That’s the ambition Professors Hanoch Dagan and Michael Heller set out in their forthcoming book, The Choice Theory of Contracts, excerpts of which the authors presented at this week’s HLS Private Law Workshop. Dagan and Heller contend that contract law’s ultimate value is, and ought to be, […]