Category Archives: General
Andrew Gold, ‘The Many Kinds of Justice in Private Law’
ABSTRACT Private law theorists often employ a single type of justice to explain the field. Typically, the chosen type is corrective justice. While it is true that courts look to do ‘justice between the parties’, I will argue that ‘justice between the parties’ is an open-ended category that encapsulates multiple types of justice. Seeing private […]
Vincent Okonkwo, ‘Is Money Money? Digital Currencies, Moneyness, and the Future of the Legal Fiction of Money’
ABSTRACT Most academic analyses on the ‘money’ status of cryptocurrency are performed either formalistically or superficially. The paper on the subject and the unity of conclusions are suggestive of this fact. These assessments religiously ask whether cryptocurrencies meet ‘definitive’ standards of ‘money-ness’ in monetary economics. They would mostly resolve that cryptocurrencies do not. This article […]
Lionel Smith, ‘Obligation and Duty – Two Things or One?’
ABSTRACT This paper examines, from a conceptual and lexicographical perspective, the question whether there is a difference between owing an ‘obligation’ and owing a ‘duty’. It argues that although the words are sometimes used as synonyms, there is a clearly articulable sense in which obligations (that is, the burdensome end of them) are a subset […]
‘The Veil of Legislative Intent’
Francesca Poggi and Francesco Ferraro, ‘From the Ideal Legislator to the Competent Speaker: Uncovering theDeception in Legislative Intent’, 15 Jurisprudence 464 (2024). What lies behind one of our most engrained and persistent assumptions in law – the existence of a specific kind of intention underlying the utterances of an authority? This is the question that […]
Steven Schwarcz, ‘Commercial Reasonableness’
ABSTRACT This Article examines the critical but largely unaddressed subject of commercial reasonableness. The inquiry is important because, inter alia, commercial reasonableness can signal the presence of good faith, which is an implied duty in all contracts; whereas commercially unreasonable behavior signals bad faith. A transaction that is not commercially reasonable may be unenforceable. The […]
Manish Oza, ‘Justiciability in Private Law: Religion and Politics’
ABSTRACT This paper is about whether private law disputes are ever non-justiciable. I argue that, as a general rule, a private law dispute is justiciable if and only if the claim asserts that the plaintiff’s legal rights have been breached by the defendant. Contrary to recent suggestions, there is no rule that renders disputes non-justiciable […]
Elena Falletti, ‘Once Upon a Precedent: How LLMs Challenge the Identity of Common Law’
ABSTRACT The common law, originating in England and later adopted in countries such as the United States, Canada, Australia, India, Hong Kong, and Singapore, remains unified by the doctrine of stare decisis, the binding force of precedent. Accurate citation of case law is, therefore, an essential skill for judges and lawyers, particularly in case analysis […]
Frank Fagan, ‘The Coming Law Review Shortage’
ABSTRACT Today, law reviews sit near equilibrium: roughly 5,000 annual submissions for about 5,600 slots. Tomorrow, large language models are likely to drive output toward 8,000. The result is a systemic shortage of publication placements. Peer review will not emerge; instead, journals will lean more heavily on prestige heuristics, expand symposia, experiment with limited faculty […]
Sarna and Tobia, ‘The Realist Use of Empirical Legal Studies: A Case Study of Reasonableness’
ABSTRACT Today, the conjunction of ‘legal realism’ and ‘Empirical Legal Studies’ calls to mind demonstrations of biased decision-making: legal decisions are driven by actors’ personality, politics, or even breakfast! In American legal theory, Empirical Legal Studies has long been associated with legal realism, and our understanding of the former has thus been refracted through the […]
John Oberdiek, ‘Private Law Adjudication, Retroactivity, and the Rule of Law’
ABSTRACT In his rich discussion of the rule of law in Reciprocal Freedom, Ernest Weinrib observes that the prospectivity central to the rule of law seems incompatible with the apparent retroactivity of adjudication, for ‘parties to litigation are held to a norm of which they had no specific notice when the impugned conduct occurred’. Weinrib […]