Monthly Archives: November, 2021

‘Childish tricks and chastisement: a few hints from a fourteenth century trespass case’

“My own childhood was in the dwindling twilight of the age of corporal punishment: officially banned in England and Wales, it was nevertheless alive in the memory of schools. There was a thin, whippy, cane in the office of one headteacher – a slightly threatening relic – and there was one teacher in secondary school […]

Sepehr Shahshahani, ‘Hard Cases Make Bad Law? A Theoretical Investigation’

ABSTRACT I use formal models to probe the aphorism that ‘hard cases make bad law’. The analysis illuminates important features of the common law process, especially the influence of case characteristics on lawmaking and the role of strategic litigators. When a case raises concerns that are not reflected in doctrine, the court might distort the […]

‘Legal Theory Lexicon: Consent’

“Most law students begin realize that consent is a powerful legal and moral concept early in the first year of law school. A physical blow to the person is a battery – unless the blow was landed in a boxing match, in which case consent turns the battery into something that is legally permissible and […]

Jennifer Rothman, ‘Navigating the Identity Thicket: Trademark’s Lost Theory of Personality, the Right of Publicity, and Preemption’

ABSTRACT Both trademark and unfair competition laws and state right of publicity laws protect against unauthorized uses of a person’s identity. Increasingly, however, these rights are working at odds with one another, and can point in different directions with regard to who controls a person’s name, likeness, and broader indicia of identity. This creates what […]

Schmit, Larson and Kum, ‘Data Privacy in the Time of Plague’

ABSTRACT Data privacy is a life-or-death matter when it comes to public health. From late fall 2019 until summer 2021, two series of events unfolded, one that everyone was talking about, and one that hardly anyone noticed. The most reported news story of that period related to the greatest world-health crisis in at least 100 […]

Henry Cooney, ‘Causation and Contributory Negligence: The Use and Misuse of Causal Concepts in Cases of Misleading Conduct’

ABSTRACT The nature of liability for loss caused by misleading conduct has changed in recent years. A field previously dominated by tort, the last few decades have seen the emergence of statutory causes of action created by legislative schemes proscribing a variety of forms of misleading conduct. In both tort and in cases of statutory […]

Thomas Kadri, ‘Tort Law: Cases and Critique’

ABSTRACT A tort is a wrong. In a tort suit, the plaintiff demands a remedy by alleging that the defendant wronged them. Tort law determines what counts as a tort, how plaintiffs may establish their claims, when defendants may avoid liability, and which remedies plaintiffs may seek. Simply put, tort law is about civil legal […]

Mbilike Mwafulirwa, ‘The Common Law and the Self-Driving Car’

ABSTRACT … This paper outlines an analytical blueprint based on longstanding common law rules to address this new driverless phenomenon. This paper considers the common law liability continuum starting with the person in the driver’s seat who engages the self-driving feature, to the owner who uses her self-driving car as a common carrier, to the […]

Dori Kimel, ‘The Next Best Thing To a Promise’

ABSTRACT What does the promisor owe the promisee when a promise is broken? Some writers have argued that the same reparative obligation – ‘next-best performance’ – arises, at least by default, in all such cases, no matter what kind of promise has been broken, what background relationship there is between promisor and promisee, and what […]

Jessica Shoemaker, ‘The Truth About Property’

ABSTRACT This essay reviews Gregory Ablavsky’s Federal Ground: Governing Property and Violence in the First US Territories (Oxford University Press, 2021), which explores the origins of the modern American property system and federal jurisdiction and sovereignty more generally. This essay emphasizes how Ablavsky’s more nuanced retelling of America’s property creation story can suggest important insights […]