Category Archives: General
Emile Zitske, ‘The foundations of transformative private law in South Africa’
ABSTRACT This article problematises a shallow understanding of ‘transformative private law’ as being a simple merger of constitutional rights and private law. Instead, feeding into international discourse on transformative private law, it is argued that a South African iteration of the concept ought to be rooted in ‘transformative constitutionalism’. Exploring the jurisprudential foundations of transformative […]
Stefan Theil, ‘Carefully Tailored: Doctrinal Methods and Empirical Contributions’
ABSTRACT Doctrinal research is the distinct methodological approach of lawyers and a core contribution of legal studies to human knowledge. Yet, lawyers do not often explain their doctrinal research methods and by implication struggle to articulate where empirical research can make helpful contributions. The articles suggests that doctrinal research is characterised by three core features […]
Marc DeGirolami, ‘Person, Religion, and the Problem of Legal Essences’
ABSTRACT While American law continues to use the terms ‘person’ and ‘religion’, their meanings in different legal contexts suffer from a growing incoherence whose source is similar: a lack of essential attributes. An essential legal attribute is a characteristic without which something cannot be a member of a given legal category-in this case, the category […]
Emily Sherwin, ‘System and Tradition’
ABSTRACT At least in the area of private law, most theoretical arguments in twentieth century American legal scholarship can be traced back in one way or another to the division between Formalists and Realists. Described very broadly, Realists located the essence of private law in the conclusions judges reached in response to the facts of […]
Gregory Dickinson, ‘Law Proofing the Future’
ABSTRACT Lawmakers today face continuous calls to ‘future proof’ the legal system against generative artificial intelligence, algorithmic decision-making, targeted advertising, and all manner of emerging technologies. This Article takes a contrarian stance: It is not the law that needs bolstering for the future, but the future that needs protection from the law. From the printing […]
Talya Deibel, ‘Private Law and the Inner Self: Comparative Perspectives on the Governance of Neurotechnology’
ABSTRACT The main focus of this article is to demonstrate that the legal governance of disruptive technologies requires a nuanced, historically informed, and comparative approach to law. The article takes neurotechnology as its central case study and investigates how private law can reposition itself with respect to potential harm caused by the usage of neurotechnologies. […]
Ekaterina Pannebakker, ‘Teaching sustainability in transnational commercial law: three dilemmas’
ABSTRACT This article explores three dilemmas in integrating sustainability into commercial law courses. First, should sustainability be explicitly addressed in the curriculum or deliberately omitted? Second, should the regulatory framework surrounding sustainability be presented as a constraint on party autonomy or, rather, as part of the lex mercatoria or established commercial usages and, thus, as […]
Khaled Boudraa, ‘Core Section: The Innovation – Temporary Legal Personality (TLP)’
ABSTRACT Temporary Legal Personality (TLP) is not a mere extension of existing personhood doctrines – it is a legal invention designed to meet the existential challenge posed by autonomous Artificial Intelligence. Traditional legal systems recognize two stable identities: the natural person, governed by biological and moral existence; and the juridical person, defined by institutional, economic, […]
Sam Varvastian, ‘Climate Change Litigation, Liability and Global Climate Governance – Can Judicial Policymaking Become a Game-changer?’
ABSTRACT Climate change litigation, which is often perceived as an attempt to fill the regulatory gap left by the traditional decision-making legislative and executive branches, has grown intensively in recent years, becoming an important feature of climate governance in the US and a growing trend in some other jurisdictions. However, climate cases often involve a […]
Robertson and Epstein, ‘The Resurgence of Private Law in American Health Care’
As the regulatory landscape of American health care undergoes a transformation, private law is poised to play an increasingly central role in the health care system. Public law — the work of legislatures and administrative agencies — has long governed health care access, quality, and accountability in the United States. But recent deregulatory moves by […]