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Private Law, Misc

Edited by Ori Herstein (King's College London, Hebrew University of Jerusalem)
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  1. Peter A. Alces (2011). A Theory of Contract Law: Empirical Insights and Moral Psychology. OUP Usa.
    In the past few decades, scholars have offered positive, normative, and most recently, interpretive theories of contract law. These theories have proceeded primarily (indeed, necessarily) from deontological and consequentialist premises. In A Theory of Contract Law: Empirical Understandings and Moral Psychology, Professor Peter A. Alces confronts the leading interpretive theories of contract and demonstrates their interpretive doctrinal failures. Professor Alces presents the leading canonical cases that inform the extant theories of Contract law in both their historical and transactional contexts and, (...)
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  2. 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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  3. 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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  4. 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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  5. 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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  6. 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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  7. 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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  8. R. Feenstra (1996). Legal Scholarship and Doctrines of Private Law, 13th-18th Centuries. Monograph Collection (Matt - Pseudo).
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  9. Matthew Harding (2009). Justifying Fiduciary Allowances. In Andrew Robertson & Hang Wu Tang (eds.), The Goals of Private Law. Hart Pub.
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  10. 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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  11. 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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  12. 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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  13. Dennis Klimchuk (2003). On the Autonomy of Corrective Justice. Oxford Journal of Legal Studies 23 (1):49-64.
    A few years ago, Peter Benson argued that unless claims in corrective justice are grounded on an independent, non‐distributive measure of entitlement, corrective justice collapses into distributive justice. More recently, Stephen Perry argued that the autonomy of corrective justice can be secured with something more modest, namely a free‐standing conception of harm. I argue, first, that Perry's account is closer to Benson's than we might at first think, and, second, that implicit in each is a view that we ought to (...)
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  14. 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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  15. Jeroen Kortmann (2005). Altruism in Private Law: Liability for Nonfeasance and Negotiorum Gestio. OUP Oxford.
    This book examines two problems in Private law which are posed by the 'Good Samaritan': First, is an intervener under a legal duty to come to the aid of a fellow human being and does he incur any criminal or tortious liability if he fails to do so? Second, having intervened, is an intervener entitled to reimbursement of expenses, remuneration, reward, or compensation for any loss he might have suffered? Does or should the remedy depend on the success of the (...)
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  16. Robert Lamb (2014). The Power to Bequeath. Law and Philosophy 33 (5):629-654.
    What should happen to a property holding after the death of its owner? One conventional answer to this question is that the owner can legitimately designate the beneficiary of a posthumous transfer through a written will. Yet this aspect of property ownership has received little in the way of philosophical attention or moral justification. Philosophers tend either to accept bequest as a conventional feature of property ownership or reject its legitimacy on egalitarian grounds. Dissatisfied by both approaches, this paper: provides (...)
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  17. 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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  18. 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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  19. 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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  20. Je Penner, Value, Property and Unjust Enrichment: Trusts of Traceable Proceeds.
    Restitution lawyers commonly speak of the 'transfer' of value; this is misconceived. Values are realised, not transferred, only property rights are transferred. This realisation distinctly illuminates the relationship between the law of restitution and the law of tracing, strongly suggesting that trusts of traceable proceeds are not examples of restitutionary entitlements which reverse unjust enrichments.
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  21. Williams Rebecca (2001). Unjust Enrichment and European Community Law. Oxford Journal of Legal Studies 21 (3).
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  22. 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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  23. 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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  24. Andrew Robertson & Hang Wu Tang (eds.) (2009). The Goals of Private Law. Hart Pub..
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  25. 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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  26. Zoë Sinel (2011). Through Thick and Thin: The Place of Corrective Justice in Unjust Enrichment. Oxford Journal of Legal Studies 31 (3):551-564.
    This article explores the justification for the defendant’s restitutionary obligation to the plaintiff consequent on an unjust enrichment. It focuses on the dominant corrective justice explanation, according to which the duty of restitution instantiates this virtue. It identifies two types of corrective justice explanation: a thin and thick version, attributed to John Gardner and Ernest Weinrib, respectively. According to the thin version, corrective justice is confined to the remedial relation between the plaintiff and the defendant; it is solely concerned with (...)
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  27. Adam Slavny (2014). Negating and Counterbalancing: A Fundamental Distinction in the Concept of a Corrective Duty. [REVIEW] Law and Philosophy 33 (2):143-173.
    I argue in this paper that negating and counterbalancing should be recognised as two fundamental categories of corrective action. First, I show that recognising the distinction helps to avoid confusion when asking normative questions about the justification of imposing corrective duties. Second, I argue that we have moral reasons to care about the difference between negating and counterbalancing detrimental states, and this has implications for permissible action. I then outline some ways in which the discussion helps us explain and justify (...)
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  28. 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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  29. 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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  30. 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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  31. Sandy Steel (2013). Private Law and Justice. Oxford Journal of Legal Studies 33 (3):607-628.
    This article is in two parts. The first part critically examines the foundations of Weinrib’s theory of corrective justice. It casts doubt upon his claim that private law faces incoherence if it is not entirely based upon corrective justice and questions the normative appeal of that view. The second part makes a variety of critical observations in relation to Weinrib’s corrective-justice-based treatment of particular areas of private law.
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  32. Robert Stevens (2012). Rights and Other Things. In Donal Nolan & Andrew Robertson (eds.), Rights and Private Law. Hart Pub.
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  33. 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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  34. Bright Susan (2001). Liability for the Bad Behaviour of Others. Oxford Journal of Legal Studies 21 (2).
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  35. 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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  36. 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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  37. Jeremy Waldron (1987). A. R. White, "Grounds of Liability". [REVIEW] Philosophical Quarterly 37 (46):116.
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  38. 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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  39. 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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  40. Kenneth R. Westphal (1997). Do Kant’s Principles Justify Property or Usufruct? Jahrbuch für Recht Und Ethik/Annual Review of Law and Ethics 5:141-194.
    Kant’s justification of possession appears to beg the question (petitio principii) by assuming rather than proving the legitimacy of possession. The apparent question-begging in Kant’s argument has been recapitulated or exacerbated but not resolved in the secondary literature. A detailed terminological, textual, and logical analysis of Kant’s argument reveals that he provides a sound justification of limited rights to possess and use things (qualified choses in possession), not of private property rights. Kant’s argument is not purely a priori; it is (...)
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  41. 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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  42. 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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  43. Benjamin C. Zipursky (2013). The Inner Morality of Private Law. American Journal of Jurisprudence 58 (1):27-44.
    Lon Fuller’s classic The Morality of Law is an exploration of the basic principles of a legal system: the law should be publicly promulgated, prospective, clear, and general. So deep are these principles, he argued, that too great a deviation from them would not simply create a bad legal system and bad law, but would render the products of such a system undeserving of the name “law” at all. In this essay, I argue that Fuller’s basic principles are not in (...)
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