Category Archives: Taxonomy

Alberto Galasso and Hong Luo, ‘Product Liability Litigation and Innovation: Evidence from Medical Devices’

ABSTRACT We examine the relationship between product liability litigation and innovation by systematically combining data on product liability lawsuits with data on new product introductions in a panel dataset of leading medical device firms. We first document a decline in the propensity to introduce new products for both defendant firms and other firms operating in […]

Hanoch Dagan, ‘Doctrinal Categories, Legal Realism, and the Rule of Law’

Abstract: Properly understood, legal realism stands for the conception of law as a going institution (or set of institutions) distinguished by the difficult accommodation of three constitutive yet irresolvable tensions: between power and reason, science and craft, and tradition and progress. Realists argue that the availability of multiple, potentially applicable doctrinal sources renders pure doctrinalism […]

Peter Watts, ‘Taxonomy in Private Law – Furor in Text and Subtext’

Abstract: This article starts with an overview of the debates that took place in the latter period of Peter Birks’s career over classification in private law. It does so by setting out the Birksian taxonomy, collecting various extracts from Birks’s voluminous output, and then contrasting those extracts with the views of a selection of his […]

Gerald Postema, ‘Law’s System: The Necessity of System in Common Law’

Abstract: TE Holland infamously described the common law “chaos with a full index” and critics from Jeremy Bentham to Peter Birks have criticised common law for its manifest absence of system. Defenders of contemporary common law celebrate its alleged resolute anti-theoretical stance and resistance to systematisation. However, this characterisation of common law, shared by defenders […]

Michael Lobban, ‘Mapping the Common Law: Some Lessons from History’

Abstract: This paper explores the ways in which jurists from the 17th to the 19th centuries attempted to map the law. There were multiple ways of mapping the law and its concepts. No single taxonomy was comprehensive. The most general maps were found in treatises, organised largely around the rights of person and property. However, […]

Carmine Conte, ‘From Only the ‘Bottom-up’? Legitimate Forms of Judicial Reasoning in Private Law’

Abstract: This article explores the dichotomy between ‘bottom-up’ and ‘top-down’ legal reasoning in the private law context. It considers the High Court of Australia’s recent allegations that: first, ‘top-down’ legal reasoning is illegitimate in private law judicial decision-making; secondly, any arguments adopting this reasoning structure are unacceptable, such as those deriving from the Birksian model […]

Book Review: Tort Law Defences by James Goudkamp (2013)

“This book is concerned with defences in tort law, and, in particular, with creating a taxonomy of defences in order to promote clearer thinking and more coherent legal development. It is an original and ambitious project. As James Goudkamp reminds us, no similar investigation has previously been undertaken, and the lack of earlier systematic analysis […]

Peter Watts, ‘Taxonomy in Private Law – Furor in Text and Subtext’

Abstract: This article starts with an overview of the debates over classification in private law that took place in the latter period of Peter Birks’s career. It does so by setting out the Birksian taxonomy and by collecting various extracts from Birks’s voluminous output, then contrasts those extracts with the views of a selection of […]

Gerald Postema, ‘Law’s System: The Necessity of System in Common Law’

Abstract: TE Holland infamously described the common law “chaos with a full index”, and critics from Bentham to Peter Birks have criticized common law for its manifest absence of system, its disorderly collection of legal categories and miscellany of odd rules. Defenders of contemporary common law celebrate its resolute anti-theoretical stance and resistance to systematization. […]

James Goudkamp, Tort Law Defences – discount available

Since I posted about this book yesterday, I have received an e-mail from the publishers, offering a discount to readers of this blog. Message follows:   Tort Law Defences By James Goudkamp The law of torts recognises many defences to liability. While some of these defences have been explored in detail, scant attention has been […]