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Private Law, Misc

Edited by Ori Herstein (King's College London, Hebrew University of Jerusalem)
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  1. Andrew Botterell (2013). By the Ties of Natural Justice and Equity. [REVIEW] Jurisprudence 4 (1):138-150.
    A review of Robert Chambers, Charles Mitchell and James Penner, eds., Philosophical Foundations of the Law of Unjust Enrichment (Oxford University Press, 2009).
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  2. Andrew Botterell & Chris Essert (2010). Normativity, Fairness, and the Problem of Factual Uncertainty. Osgoode Hall Law Journal 47 (4):663-693.
    This article concerns the problem of factual uncertainty in negligence law. We argue that negligence law’s insistence that fair terms of interaction be maintained between individuals—a requirement that typically manifests itself in the need for the plaintiff to prove factual or “but-for” causation—sometimes allows for the imposition of liability in the absence of such proof. In particular, we argue that the but-for requirement can be abandoned in certain situations where multiple defendants have imposed the same unreasonable risk on a plaintiff, (...)
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  3. Alan Calnan, The Instrumental Justice of Private Law.
    Instrumentalists and deontologists have long battled for an exclusive theory of private law. The instrumentalists have argued that private law is merely a means to achieving any number of political or social ends. Deontologists, by contrast, have contended that the law seeks only the moral end of justice and cannot be used for anything else. In this article, I critique these extreme positions and offer an intermediate theory called "instrumental justice." I show that the absolute instrumental view is elusive, illusory, (...)
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  4. Olha O. Cherednychenko, Eu Fundamental Rights, Ec Freedoms and Private Law.
    Originally, private law was considered to be immune from the effect of fundamental rights, the function of which was limited to being individual defenses against the vigilant eye of the state. This traditional view, however, has been put under pressure as a result of the growing effect of fundamental rights in private law, which makes it possible to speak about the tendency towards the constitutionalization of private law. Although until recently this tendency has primarily manifested itself in the national law (...)
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  5. Hanoch Dagan (2009). Just and Unjust Enrichments. In Andrew Robertson & Hang Wu Tang (eds.), The Goals of Private Law. Hart Pub..
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  6. Anthony Duggan (2009). Gain-Based Remedies and the Place of Deterrence in the Law of Fiduciary Obligations. In Andrew Robertson & Hang Wu Tang (eds.), The Goals of Private Law. Hart Pub..
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  7. Matthew Harding (2009). Justifying Fiduciary Allowances. In Andrew Robertson & Hang Wu Tang (eds.), The Goals of Private Law. Hart Pub..
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  8. Steve Hedley (2009). Looking Outward or Looking Inward? Obligations Scholarship in the Early 21st Cnetury. In Andrew Robertson & Hang Wu Tang (eds.), The Goals of Private Law. Hart Pub.. 193.
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  9. Ori J. Herstein (2013). A Legal Right to Do Legal Wrong. Oxford Journal of Legal Studies (1):gqt022.
    The literature, as are the intuitions of many, is sceptical as to the coherence of ‘legal rights to do legal wrong’. A right to do wrong is a right against interference with wrongdoing. A legal right to do legal wrong is, therefore, a right against legal enforcement of legal duty. It is, in other words, a right that shields the right holder’s legal wrongdoing. The sceptics notwithstanding, the category of ‘legal right to do legal wrong’ coheres with the concepts of (...)
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  10. Ori J. Herstein (2011). A Normative Theory of the Clean Hands Defense. Legal Theory 17 (3):171-208.
    What is the clean hands defense (CHD) normatively about? Courts designate court integrity as the CHD's primary norm. Yet, while the CHD may at times further court integrity, it is not fully aligned with court integrity. In addition to occasionally instrumentally furthering certain goods (e.g., court legitimacy, judge integrity, deterrence), the CHD embodies two judicially undetected norms: retribution and tu quoque (“you too!”). Tu quoque captures the moral intuition that wrongdoers are in no position to blame, condemn, or make claims (...)
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  11. Kevin A. Kordana & David H. Blankfein Tabachnick (2006). Taxation, the Private Law, and Distributive Justice. Social Philosophy and Policy 23 (2):142-165.
    We argue that for theorists with a post-institutional conception of property, e.g., Rawlsians, there is no principled reason to limit the domain of distributive justice to tax and transfer-both tax policy and the rules of the private law are constructed in service to distributive aims. Such theorists cannot maintain a commitment to a normative conception of private law independent of their overarching distributive principles. In contrast, theorists with a pre-institutional conception of property can derive the private law from sectors of (...)
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  12. William Lucy (2009). What's Private About Private Law? In Andrew Robertson & Hang Wu Tang (eds.), The Goals of Private Law. Hart Pub..
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  13. Maksymilian T. Madelr, Descriptions of Behavior and Behavioral Concepts in Private Law.
    Every description contains within it a qualifier that allows us to avoid the problem of descriptive regress, and thus allows us to use the description for various purposes. Descriptive regress occurs because no one description can be understood without referring to further descriptions, which themselves require unpacking by reference to further descriptions ad infinitum. There are no fundamental descriptions no descriptions that attain and keep some privileged ontological status. The qualifier works by invoking the normal circumstances in which the description (...)
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  14. Mayo Moran (2009). The Mutually Constitutive Nature of Public and Private Law. In Andrew Robertson & Hang Wu Tang (eds.), The Goals of Private Law. Hart Pub..
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  15. Andrew Robertson (2009). Constraints on Policy-Based Reasoning in Private Law. In Andrew Robertson & Hang Wu Tang (eds.), The Goals of Private Law. Hart Pub..
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  16. Andrew Robertson (2009). Introduction : Goals Rights and Obligations. In Andrew Robertson & Hang Wu Tang (eds.), The Goals of Private Law. Hart Pub..
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  17. Andrew Robertson & Hang Wu Tang (eds.) (2009). The Goals of Private Law. Hart Pub..
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  18. Emily Sherwin (2009). The Rules of Obligations. In Andrew Robertson & Hang Wu Tang (eds.), The Goals of Private Law. Hart Pub..
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  19. Stephen A. Smith (2012). Rule-Based Rights and Court-Ordered Rights. In Donal Nolan & Andrew Robertson (eds.), Rights and Private Law. Hart Pub..
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  20. Stephen A. Smith (2009). The Rights of Private Law. In Andrew Robertson & Hang Wu Tang (eds.), The Goals of Private Law. Hart Pub..
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  21. Jan M. Smits, European Private Law and Democracy: A Misunderstood Relationship.
    An important strand of scholarship claims that creating a new European private law (such as the drafting of a Common Frame of Reference for European Private Law) should not primarily be the work of legal scholars, but of politicians and parliaments. Another view would purportedly lead to a lack of democratic legitimacy. This raises the more general question what should be the exact relationship between private law and (national) democracy. This contribution - written in the Festschrift for Anthony Ogus - (...)
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  22. Robert Stevens (2012). Rights and Other Things. In Donal Nolan & Andrew Robertson (eds.), Rights and Private Law. Hart Pub..
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  23. Robert Stevens (2009). The Conflict of Rights. In Andrew Robertson & Hang Wu Tang (eds.), The Goals of Private Law. Hart Pub..
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  24. Yock Lin Tan (2009). Deterrence in Private Law. In Andrew Robertson & Hang Wu Tang (eds.), The Goals of Private Law. Hart Pub..
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  25. Graham Virgo (2009). Demolishing the Pyramid : The Presence of Basis and Risk-Taking in the Law of Unjust Enrichment. In Andrew Robertson & Hang Wu Tang (eds.), The Goals of Private Law. Hart Pub..
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  26. Charlie Webb (2009). Treating Like Cases Alike : Principle and Classification in Private Law. In Andrew Robertson & Hang Wu Tang (eds.), The Goals of Private Law. Hart Pub..
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  27. Ernest Joseph Weinrib (2012). Corrective Justice. Oxford University Press.
    Correlativity and personality -- The disintegration of duty -- Remedies -- Gain-based damages -- Punishment and disgorgement as contract remedies -- Unjust enrichment -- Incontrovertible benefit in Jewish law -- Poverty and property in Kant's system of rights -- Can law survive legal education?
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  28. Richard W. Wright (2012). Private Nuisance Law : A Window on Substantive Justice. In Donal Nolan & Andrew Robertson (eds.), Rights and Private Law. Hart Pub..
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  29. Tang Hang Wu (2009). Storytelling in the Law of Unjust Enrichment. In Andrew Robertson & Hang Wu Tang (eds.), The Goals of Private Law. Hart Pub..
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