Monthly Archives: February, 2017

Robert Merges, ‘Philosophical Foundations of IP Law: The Law and Economics Paradigm’

Abstract: This Chapter describes various philosophical perspectives on the law and economics paradigm in intellectual property. It begins with a description of utilitarianism, which is the philosophical foundation on which law and economics is built. It then describes an alternative way that law and economics can be understood: as a highly effective set of tools […]

Alexander Loke, ‘Excusable consent in duress’

Abstract: While the illegitimate pressure theory provides a more satisfactory theoretical basis for duress in contract law than the overborne will theory, it insufficiently addresses why a victim who has given deliberated consent should be excused from contractual responsibility. The paper proposes that the additional element of ‘excusable consent’ enhances the current analytical framework: first, […]

Just Published: Dyson Goudkamp and Wilmot-Smith (eds), Defences in Contract

This book is the third in a series of essay collections on defences in private law. It addresses defences to liability arising in contract. The essays range from those adopting a predominantly black-letter approach to others that examine the law from a more theoretical or historical perspective. Some essays focus on individual defences, while others […]

Donald Kochan, ‘Playing with Real Property Inside Augmented Reality: Pokémon Go, Trespass, and Law’s Limitations’

Abstract: This symposium essay uses the popular game Pokémon Go as a case study for evaluating conflicts that arise when augmented reality is layered over the real property of non-consenting owners. It focuses on the challenges augmented reality technologies pose to the meaning and enforcement of formal and informal trespass norms, first examining physical trespass […]

Alex Johnson, ‘Contracts and the Requirement of Consideration: Positing A Unified Normative Theory of Contracts, Inter Vivos and Testamentary Gift Transfers’

Introduction: This Article addresses a subject that has mystified generations of Contracts students: the normative basis for ‘consideration’. Instead of attempting to define consideration, which can be largely tautological, the focus is on the normative basis for its use in deciding which contracts are enforceable. After examining the four major normative theories that have been […]

Lars van Vliet, ‘Transfer of Property Inter Vivos’

Abstract: This chapter will give an overview of the various transfer systems for movable property and immovable property. It will focus on voluntary transfers based on a legal act between the transferor and transferee. First the difference between the unitary approach and the functional approach to passing of ownership will be discussed. Many legal systems […]

Jacob Walpert, ‘Carpooling Liability?: Applying Tort Law Principles to the Joint Emergence of Self-Driving Automobiles and Transportation Network Companies’

Abstract: Self-driving automobiles have emerged as the future of vehicular travel, but this innovation is not developing in isolation. Simultaneously, the popularity of transportation network companies functioning as ride-hailing and ride-sharing services have altered traditional conceptions of personal transportation. Technology companies, conventional automakers, and start-up businesses each play significant roles in fundamentally transforming transportation methods. […]

Oskar Liivak, ‘Private Law and the Future of Patents’

Abstract: As it operates today, patent law does not qualify as private law and, without change, I doubt it ever will. For some, this is as it should be and any private law aspects that remain in the patent system should be purged. The basic argument is that the dominant theory of patents is just […]

Halberstam and Simard, ‘Fiduciary Law and Economic Development: Attorneys As Trusted Agents in Nineteenth Century American Commerce’

Abstract: This article is the first to demonstrate the important role that fiduciary principles, and the attorneys who adopted them, played in American economic development. Our original historical research shows that: (1) lawyers were heavily involved as trusted agents in US commerce during the nineteenth century, and that (2) their profession’s devotion to fiduciary principles, […]

‘Smart Rules for Smart Contracts’

Lauren Henry Scholz, Algorithmic Contracts, Stanford Technology Law Review (forthcoming 2017), available at SSRN. Most law students are digital natives who have been using computers since grade school, while I, a baby boomer, remain an immigrant to the world of e-communication. Yet the old and new worlds may not be as different as they sometimes […]