Monthly Archives: October, 2016

‘Designing Delusion Doctrine’

Joshua C Tate, Personal Reality: Delusion in Law and Science, 49 Connecticut Law Review (forthcoming 2017), available at SSRN. In Personal Reality, Professor Tate takes us on a wide-ranging tour through cases of delusional testators, empirical psychological studies, and assorted doctrinal reform proposals. This is all in the service of figuring out what to do […]

Kaminski and Rub, ‘Copyright’s Framing Problem’

Abstract: Copyright law has a framing problem. The problem is pervasive, unresolved, and often unnoticed, and it significantly impacts the nature and scope of copyright protection. Copyrighted works are complex: books consist of chapters, newspapers consist of articles, and so on. Courts often need to decide whether to frame the work as one comprehensive whole, […]

Leckey and Favier, ‘Cohabitation’s boundaries and the confines of tradition’

Abstract: In contrast with prescriptions for law reform for unmarried cohabitants, this article studies legislative inertia on the subject. It compares France and the Canadian province of Quebec, drawing on theoretical treatment of boundaries from critical geography, queer theory, and sociolegal work on law reform. Abstinence from legislating for cohabitants has not secured legal stasis. […]

‘Informed consent: Surgeons respond to Montgomery

“On 27 October 2016, the Royal College of Surgeons issued some guidance on obtaining consent in the light of the 2015 Supreme Court decision in Montgomery. The angle of the guidance is obvious, not simply addressed to its member surgeons, but to the NHS to persuade it to allow enough time for surgeons to consent […]

Michael Pressman, ‘The Compatibility of Forward-Looking and Backward-Looking Accounts of Tort Law’

Abstract: This Article is the first to argue that forward-looking and backward-looking accounts of tort law are intrinsically compatible with one another. This theoretical point is of great importance and will bring about a paradigm shift in tort theory — and, more generally, in legal theory. This is because the long-standing debate between corrective justice […]

Dagan and Dorfman, ‘Interpersonal Human Rights and Transnational Private Law’

Abstract: Our increasingly globalized environment, typified by the significant role of transnational interactions, raises urgent concerns of grave transnational wrongs. But both the conventional way of analyzing these encounters through choice of law (or conflict of laws) rules and the emerging strategies to address the inadequacies of these rules — through either devising exceptional means […]

Anthony Sebok, ‘Actual Causation in the Second and Third Restatements: Or, the Expulsion of the Substantial Factor Test’

Abstract: This chapter contrasts the Restatement (Third) of Torts: Liability for Physical Harm’s Chapter Five (on Factual Cause) and Chapter Six (on Scope of Liability) with the treatment of causation in the Restatement (Second) of Torts’ Chapter 16 (‘Legal Cause’). It was written for a book on causation in both common law and civilian jurisdictions. […]

‘A Duty To Sell Life-Saving Medicine?’

William M Janssen, A ‘Duty’ To Continue Selling Medicines, 40 American Journal of Law and Medicine 330 (2014), available at SSRN. Imagine that you have a rare, life-threatening medical condition. You are prescribed a drug that is critical to your survival. You thrive on the prescribed drug and your health improves significantly. However, only one […]

Dagan and Dorfman, ‘Just Relationships’

Abstract: Scholars traditionally conceptualize private law around a commitment to the values of formal freedom and equality. Critics of the traditional view (including lawyer-economists) dispute the significance of a distinction between public and private law, construing private law as merely one form of public regulation. Both positions are flawed. The traditional position is conceptually misguided […]

James Grant, ‘The Ideals of the Rule of Law’

Abstract: Choices that are underdetermined by reason, such as choices arising from incommensurability among values, involve an element of arbitrariness, and arbitrary choices are commonly thought to be inimical to the rule of law. In this article, I suggest that we should distinguish between two different ideals of the rule of law, and that the […]