Monthly Archives: February, 2018

Brian Bix, ‘Commodified Promises and Contract Theory’

Abstract This is a comment on Erik Encarnacion, ‘Contract as Commodified Promise’. In that article, Encarnacion offers a novel and provocative approach to understanding what the justifications and limits of contract law are, and should be: one grounded on a commodification theory. The commentary notes the potential strengths of a commodification approach, but also raises […]

SAA Cooper, ‘Discretion in property law: a study of judicial correction of registered title’

Abstract This paper examines discretionary decision making in a property law context: the statutory power to correct a mistaken entry on the land register. This discretionary power has importance as an occasion when the allocation of property occurs without fixed rules but is put into the control of the court without guidance on content or […]

David McLauchlan, ‘Some Fallacies Concerning the Law of Contract Interpretation’

Abstract This article seeks to refute several basic propositions concerning the law of contract interpretation that have recently been put forward by academic commentators, some of which gain implicit support from an extra-judicial speech by Lord Sumption earlier this year. These propositions are: the very purpose of a written contract dictates the existence of a […]

Sandra Aistars, ‘Ensuring Only Good Claims Come in Small Packages: A Response to Scholarly Concerns About a Proposed Small Copyright Claims Tribunal’

Abstract For more than a decade small businesses and individual artists have sought to create an alternate forum in which to enforce copyright claims of modest economic value. The need to address this so called ‘small copyright claims problem’ was first articulated in a submission by the visual arts community to the US Copyright Office […]

Mark Grady, ‘Justice Luck and the Law of Negligence’

Abstract Juries possess the power to forgive even obvious negligence and frequently exercise it. Judges and courts facilitate this disposition of cases and regularly affirm juries’ decisions to forgive negligence. This practice creates a problem for corrective justice theories of negligence, which commonly assert that the purpose of negligence law is to repair harm. This […]

Courtney Joslin, ‘Discrimination In and Out of Marriage’

Abstract The Supreme Court’s decision in Obergefell v Hodges marks a tremendous victory for lesbian, gay, bisexual, and transgender people. Some scholars suggest, however, that in addressing one form of discrimination, the Court derailed efforts to dismantle another – the privileging of marriage over nonmarriage. By excavating the forgotten history of marital status advocacy, this […]

Tatiana Cutts, ‘Modern Money Had and Received’

Abstract The many manifestations of money had and received have come to be treated as a single claim, to reverse a defective transfer of value. I show here that this tendency towards unification has led us to exaggerate the role of value, thus obscuring the normative role played by the notion of a ‘transfer’ from […]

Busch and van Dam, ‘A Bank’s Duty of Care’

Abstract In this article we place a bank’s duty of care in a European and comparative law perspective. The first thing that strikes is that courts throughout the jurisdictions approach the questions with respect to the bank’s duty of care in a pragmatic way. They do not seem to feel strongly bound or hindered by […]

McMichael and Viscusi, ‘Taming Blockbuster Punitive Damages Awards’

Abstract Blockbuster punitive damages awards, ie, those awards exceeding $100 million, attract attention based on their sheer size. While there have been fewer such awards in the last decade, they remain an important presence in the legal landscape. Taking notice of these and other large punitive damages awards, courts and state policymakers have taken steps […]

Peter Sparkes, ‘Drafting (and Redrafting) Comparative Property Questionnaires’

Abstract In an edited version of an address to a conference held in Utrecht on ‘Improving Research Methodology’, the author seeks to draw general lessons from his experience over fifteen years in working on comparative projects on the law of immovable property. Lessons are sought in three broad areas, choice of jurisdiction, terminology and overcoming […]