Monthly Archives: February, 2020

Dan Priel, ‘Structure, Function, and Tort Law’

ABSTRACT A popular view among tort theorists is that an explanation of tort law must take account its ‘structure’, since this structure constitutes the law’s ‘self-understanding’. This view is used to both criticize competing functional accounts of tort law, especially economic ones, that are said to ignore tort law’s structure, and, more constructively, as a […]

Cass Sunstein, ‘Voluntary Agreements’

ABSTRACT In philosophy, economics, and law, the idea of voluntary agreements plays a central role. It orients contractarian approaches to political legitimacy. It also helps support the claim that outsiders, and especially the state, should not interfere with private contracts. But contractarianism in political philosophy stands (or falls) on altogether different grounds from enthusiasm for […]

Schmidt and Engelen, ‘The ethics of nudging: An overview’

ABSTRACT So‐called nudge policies utilize insights from behavioral science to achieve policy outcomes. Nudge policies try to improve people’s decisions by changing the ways options are presented to them, rather than changing the options themselves or incentivizing or coercing people. Nudging has been met with great enthusiasm but also fierce criticism. This paper provides an […]

‘Deconstructing Foundational Principles of Trusts and Estates Law’

Naomi R Cahn, Dismantling the Trusts and Estates Canon, 2019 Wisconsin Law Review 165 (2019). All areas of the law have certain foundational principles or beliefs that are widely shared. These underlying assumptions often go unchallenged. In the trusts and estates field, these principles include: (1) giving a certain amount of ongoing control to the […]

William Meyer, ‘The Background to Riggs v Palmer

ABSTRACT The decision of the New York Court of Appeals in Riggs v Palmer (1889) is remarkable for the mass of discussion about a variety of fundamental issues that it has generated. Elmer Palmer was convicted of murdering his grandfather Francis, and the court refused to let him inherit under Francis’s will despite the absence […]

Barbara Fried, ‘Tortious Harms’

“… At the end of the day, then, the ‘harm plus fault’ test either provides no answer to the question of what dangers it is permissible to expose others to, or provides an answer that reduces to aggregation manqué. It has, however, answered a different question: when are we required to compensate the victims of […]

Bernard Chao, ‘Privacy Losses as Wrongful Gains’

ABSTRACT Perhaps, nowhere has the pace of technology placed more pressure on the law than in the area of data privacy. Huge data breaches fill our headlines. Companies often violate their own privacy policies by selling customer data, or by using the information in ways that fall outside their policy. Yet, even when there is […]

Jennifer Arlen, ‘Reality Check: How Malpractice Facts Changed Malpractice Liability Theory’

ABSTRACT Empirical legal studies has transformed economic analysis of malpractice liability. Until recently, economic analysis of malpractice liability has been based on the traditional model of accidents. This model supports the conclusion that malpractice liability may not be needed if health insurers, not physicians, bear treatment costs. Moreover, this analysis implies that even when liability […]

Abraham and White, ‘Rethinking the Development of Modern Tort Liability’

ABSTRACT The standard story of the development of modern tort liability is straightforward, but it turns out to be seriously misleading. The story is that, in the second half of the nineteenth century, negligence liability replaced the pre-modern forms of action as the principal basis for the imposition of liability for accidental bodily injury and […]

Samuelson, Golden and Gergen, ‘Recalibrating the Disgorgement Remedy in Intellectual Property Cases’

ABSTRACT The five major US intellectual property (IP) regimes – trademark, trade secrecy, copyright, design patent, and utility patent laws – have quite different rules about the availability of disgorgement of infringer profits as a remedy. Traditional principles of restitution and unjust enrichment support awards of disgorgement of profits insofar as they are (1) levied […]