Monthly Archives: May, 2024
Kuntz and Miller, ‘Introduction to Methodology in Private Law Theory: Between New Private Law and Rechtsdogmatik’
ABSTRACT This introduction to Methodology in Private Law Theory: Between New Private Law and Rechtsdogmatik (Thilo Kuntz and Paul B Miller, eds, Oxford University Press, forthcoming) provides a thematic overview methodological questions and positions taken in contemporary American and German private law theory, as well as a discussion of the contributions to the volume. The […]
‘Towards the End of Normative Interpretation of Contracts’
David A Hoffman and Yonathan A Arbel, ‘Generative Interpretation’, 99 New York University Law Review (forthcoming, 2024); University of Pennsylvania Law School, Public Law Research Paper, available at SSRN (1 August 2023). The plain meaning rule is out of favor with contracts academia. There is so little to say about it, nothing to theorize, and […]
Peter and Ho, ‘Agreement and Restitutionary Liability for Mistaken Payments’
ABSTRACT This chapter considers two recent attempts that claim a defendant’s actual or hypothetical agreement as grounds for restitutionary liability for mistaken payments. With respect to Alexander Georgiou’s attempt based on an actual but tacit agreement, we argue that his account: (1) confuses the motivating causes of the payment with the terms of the payment; […]
Benjamin Shmueli, ‘Relational Torts: Tort Litigation in Cases of Close Relations’
ABSTRACT To what extent do personal relationships, such as between family members, neighbors, or trusted business partners matter in ascertaining how to address tort claims? This Article brings policy considerations into present rationales for a new and comprehensive doctrine of relational torts and lays the foundations for practical application of this doctrine. This Article discusses […]
Reder and Kowalski, ‘Type I vs Type II: Delaware Courts Discuss Enforceability of Preliminary Agreements’
ABSTRACT When parties to commercial negotiations reach an agreement on certain basic transaction terms but are not yet ready to proceed to definitive documentation, they frequently will sign a preliminary agreement – usually called a letter of intent or an agreement in principle – to memorialize their then-current intentions. Preliminary agreements typically state that the […]
Ayotte and Badawi, ‘Loopholes in Complex Contracts’
ABSTRACT In 2016, J Crew exploited a loophole in a complex debt contract, allowing it to remove $250 million of collateral from its lenders’ reach to refinance other debt. Why would an important and unanticipated flaw like this arise in a contract between sophisticated commercial actors? Answering this question requires a model where contracts can […]
‘Copyright Fiduciaries: Problems and Solutions’
Andrew Gilden and Eva E Subotnik, ‘Copyright’s Capacity Gap’, 57 UC Davis Law Review (forthcoming, 2023), available at SSRN (9 August 2023). In this forthcoming article, Andrew Gilden and Eva Subotnik begin an important conversation about an underexplored area of copyright law. Their focus is copyright law’s inconsistent treatment of mental capacity. Under copyright law, […]
Daria Kim, ‘Artificial Intelligence Should Not Become a “Black Hole” for Human Agency in Tort Law’
ABSTRACT This article analyses the implications of the tendency to anthropomorphise artificial intelligence (AI) systems for tort law. It shows that the view of AI technology as ‘autonomous’, ‘unexplainable’ and ‘unpredictable’ can misguide the ‘fit-for-purpose’ assessment of the existing liability regimes. The analysis points out that risks and harm associated with AI technology are not […]
Kaplan and Paldor, ‘Choosing Sides: On the Manipulation of Civil Litigation’
ABSTRACT Our litigation system is broken. Scholars have long warned that professional litigants such as debt-collecting firms, insurance companies, and commercial landlords enjoy immense and unfair advantages over private individuals. What has gone unnoticed is professional litigants’ ability to manipulate their litigatory position, ie, to choose whether they will litigate as plaintiffs or defendants. Extant […]
Peter Karol, ‘What’s The Use? The Structural Flaw Undermining Warhol v Goldsmith’
ABSTRACT This article argues that the Supreme Court’s recent and significant ruling in Warhol v Goldsmith suffers from a foundational error that jeopardizes its value as precedent. Namely, the Court conceptualized the fair use defense at issue as arising from the alleged infringer’s ‘commercial licensing’ of an Andy Warhol silkscreen to a non-party magazine publisher. […]