Monthly Archives: December, 2017

Ben-Shahar and Strahilevitz, ‘Interpreting Contracts via Surveys and Experiments’

Abstract Interpreting the language of contracts may be the most common and least satisfactory task courts perform in contract disputes. This Article proposes to take much of this task out of the hands of lawyers and judges, entrusting it instead to the public. The Article develops and tests a novel regime – the ‘survey interpretation […]

Oliver Black, ‘Varieties of Legal Reliance’

“… This paper, taking a more optimistic view, identifies and distinguishes notions of reliance that are not too slippery to determine liability, considers which of them are at issue in the sources, and offers suggestions as to the appropriate ones for legal purposes. These notions can be roughly ordered according to strength and in that […]

Larry Garvin, ‘The Best of Cases, the Worst of Cases’

Abstract This consists of my lightly edited contributions to a symposium on the best and worst cases in contract law, to be published in the Florida State University Law Review in 2018. The first short essay explores why Kingston v Preston, Lord Mansfield’s classic opinion on the constructive conditions of exchange, is so good – […]

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

Introduction … This argument proceeds in three sections. The first reviews some of the central features of private law that enable institutions like property and tort to operate without extensive, chronic judicial coercion. The next section proceeds to the dominant patent theory and shows that its incentive-centric framework is incompatible with private law. The final […]

Anna Gelpern, ‘The Strained Marriage of Public Debts and Private Contracts’

Abstract ‘[S]overeign debt is a complex political institution, which cannot be reduced to creditor coordination or any other contract problem.’ Gelpern, Anna, The Strained Marriage of Public Debts and Private Contracts (2017). Forthcoming, Current History, volume 117, pp 22-28 (2018).

Cass Sunstein, ‘“They Ruined Popcorn”: On the Costs and Benefits of Mandatory Labels’

Abstract Do consumers benefit from mandatory labels? How much? These questions are difficult to answer, because assessment of the costs and benefits of labels presents serious challenges. In the United States, federal agencies have: (1) claimed that quantification is essentially impossible; (2) engaged in ‘breakeven analysis’; (3) projected various endpoints, such as health benefits or […]

Custers, Dechesne, Sears, Tani and van der Hof, ‘A Comparison of Data Protection Legislation and Policies Across the EU’

Abstract Although the protection of personal data is harmonized within the EU by Directive 95/46/EC and will be further harmonized by the General Data Protection Regulation (GDPR) in 2018, there are significant differences in the ways in which EU member states implemented the protection of privacy and personal data in national laws, policies, and practices. […]

Clark Asay, ‘Patenting Elasticities’

Abstract Over the last decade, a growing consensus has emerged: there are too many patents, and they are causing a host of problems. These problems include patent ‘trolling’, patent ‘wars’, and other wasteful societal costs. In explaining this patent overabundance, some scholars have pinpointed the United States Patent Office, the governmental body responsible for issuing […]

Benny Chung, ‘Fraud Prevention? Dehors? Or What?: why secret trusts are enforced?’

Abstract Two theories – the fraud theory and the dehors the will theory – are often cited to justify the enforcement of secret trusts. While these theories are undeniably popular, they nonetheless suffer from some critical problems. This article seeks to discuss the flaws of these two theories, and justify the enforcement of secret trusts […]

Dina Waked, ‘Sense and Nonsense of the Economic Analysis of Tort Law’

Abstract Economics applied to law is as old as Bentham, Ricardo, Smith and Marx. It is also as varied as these authors are from one another. However, when we talk today about the economic analysis of law, or simply law and economics (L&E), generally one version is meant: namely, the one born to the Chicago […]