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Private Law

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. R. Brownsword (2004). The Enforceability of Promises in European Contract Law. Edited by James Gordley. The European Legacy 9:381-381.
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  3. Peter Cane (2005). Taking Disagreement Seriously: Courts, Legislatures and the Reform of Tort Law. Oxford Journal of Legal Studies 25 (3):393-417.
    This article explores the relevance of disagreement about values and about the functions and effects of law to debates concerning the appropriate relationship between courts and legislatures, common law and statute. Recent developments in tort law provide a context for the discussion. The argument is that in general, political processes of law-making should be preferred judicial processes.
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  4. Witting Christian (2000). Justifying Liability to Third Parties for Negligent Misstatements. Oxford Journal of Legal Studies 20 (4).
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  5. Sean Coyle (2012). A Review of Izhak Englard, Corrective and Distributive Justice: From Aristotle to Modern Times. [REVIEW] Jurisprudence 2 (2):597-601.
  6. David Ellerman (1992). Property and Contract in Economics: The Case for Economic Democracy. Blackwell.
    From a pre-publication review by the late Austrian economist, Don Lavoie, of George Mason University: -/- "The book's radical re-interpretation of property and contract is, I think, among the most powerful critiques of mainstream economics ever developed. It undermines the neoclassical way of thinking about property by articulating a theory of inalienable rights, and constructs out of this perspective a "labor theory of property" which is as different from Marx's labor theory of value as it is from neoclassicism. It traces (...)
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  7. Joanna Mary Firth & Jonathan Quong (2012). Necessity, Moral Liability, and Defensive Harm. Law and Philosophy 31 (6):673-701.
    A person who is liable to defensive harm has forfeited his rights against the imposition of the harm, and so is not wronged if that harm is imposed. A number of philosophers, most notably Jeff McMahan, argue for an instrumental account of liability, whereby a person is liable to defensive harm when he is either morally or culpably responsible for an unjust threat of harm to others, and when the imposition of defensive harm is necessary to avert the threatened unjust (...)
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  8. John Gardner, Torts and Other Wrongs.
    It is hard to think of any contemporary writers who have done more than John Goldberg and Ben Zipursky to reassert and reinvigorate what might be called the classical interpretation of the common law of torts. I, for one, am greatly in their debt. They have taught me a great deal, not only about torts but also about how to combine legal argument felicitously with philosophical insight and historical scholarship. Like them, and partly because of them, I believe that the (...)
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  9. John Gardner & Torts as Wrongs (2005). 15 Backward and Forward with Tort Law. In Joseph Keim Campbell, Michael O'Rourke & David Shier (eds.), Law and Social Justice. Mit Press. 255.
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  10. Stuart P. Green (2005). Six Senses of Strict Liability: A Plea for Formalism. In Andrew Simester (ed.), Appraising Strict Liability. Oup Oxford.
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  11. Martín Hevia (2010). Contract as Promise-Casi 30 Años Después. Isonomía: Revista de Teoría y Filosofía Del Derecho 32:195-208.
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  12. Angela R. Holder (1991). What is a Contract of Adhesion? Irb 13 (4):10.
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  13. Tony Honore (1995). Necessary and Sufficient Conditions in Tort Law. In David G. Owen (ed.), Philosophical Foundations of Tort Law. Oxford University Press. 363--385.
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  14. 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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  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. N. Stephan K_insella (2003). A Libertarian Theory or Contract: Title Transfer, Binding Promises, and Inalienability. Journal of Libertarian Studies 17 (2):11-37.
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  17. 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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  18. Richard L. Lippke (1999). Torts, Corrective Justice, and Distributive Justice. Legal Theory 5 (2):149-169.
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  19. Michael MacGrath (forthcoming). The Recovery of Pure Economic Loss in Negligence--An Emerging Dichotomy. Oxford Journal of Legal Studies 5 (3):350-377.
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  20. Christer Magnusson (2011). ICT Pollution and Liability. Acm Sigcas Computers and Society 41 (1):48-53.
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  21. John Murphy (2012). Misfeasance in a Public Office: A Tort Law Misfit? Oxford Journal of Legal Studies 32 (1):51-75.
    This article explores the peculiarities of the tort of misfeasance in a public office from the perspective of two popular, contemporary theories of tort law: the rights-based theory of Robert Stevens, and the corrective justice theory of Ernest Weinrib. It identifies four significant problems of fit for these theories: viz, the fact that this tort does not protect a clearly defined private law right; the fact that its touchstones of liability include concepts that are highly unusual in tort law (such (...)
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  22. David Pearce & Roger Halson (2008). Damages for Breach of Contract: Compensation, Restitution and Vindication. Oxford Journal of Legal Studies 28 (1):73-98.
    In this article we examine the role which vindication plays in contract damages. Vindication describes the making good of a right by the award of an adequate remedy. We argue that, while the primary purpose of compensation is to provide an indemnity for loss, an award of compensatory damages will nevertheless generally vindicate the right to performance of the contract. We go on to consider a distinct measure of damages, vindicatory damages. These, we argue, are neither compensatory nor restitutionary, neither (...)
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  23. Philip Pettit (2006). Can Contract Theory Ground Morality? In James Lawrence Dreier (ed.), Contemporary Debates in Moral Theory. Blackwell Pub.. 6--77.
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  24. Richard A. Posner (1995). Wealth Maximization and Tort Law: A Philosophical Inquiry. In David G. Owen (ed.), Philosophical Foundations of Tort Law. Oxford University Press. 99--111.
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  25. Jonathan Quong (2012). Liability to Defensive Harm. Philosophy and Public Affairs 40 (1):45-77.
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  26. Williams Rebecca (2001). Unjust Enrichment and European Community Law. Oxford Journal of Legal Studies 21 (3).
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  27. Mullender Richard & Speirs Alistair (2000). Negligence, Psychiatric Injury, and the Altruism Principle. Oxford Journal of Legal Studies 20 (4).
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  28. Andrew Robertson (2013). On the Function of the Law of Negligence. Oxford Journal of Legal Studies 33 (1):31-57.
    This article offers an understanding of the law of negligence which explains its concern with both interpersonal justice and community welfare. It argues that close attention to the structure of the duty of care inquiry and the reasoning in duty cases suggests that the law of negligence has an underlying community welfare purpose, but that purpose is not to be found in notions of deterrence, compensation or the improvement of standards of behaviour. The community welfare purpose underlying the law of (...)
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  29. Carl E. Schneider (forthcoming). At Law: Liability for Life. Hastings Center Report.
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  30. Seana Valentine Shiffrin (1999). Wrongful Life, Procreative Responsibility, and the Significance of Harm. Legal Theory 5 (2):117-148.
  31. Kenneth Simons (2009). The Distinction Between Negligence and Recklessness is Unstable. In Paul Robinson, Kimberly Ferzan & Stephen Garvey (eds.), Criminal Law Conversations. 290--291.
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  32. Kenneth W. Simons (1995). Contributory Negligence: Conceptual and Normative Issues. In David G. Owen (ed.), Philosophical Foundations of Tort Law. Oxford University Press.
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  33. 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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  34. 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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  35. 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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  36. Bright Susan (2001). Liability for the Bad Behaviour of Others. Oxford Journal of Legal Studies 21 (2).
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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 (2006). Performance and Compensation: An Analysis of Contract Damages and Contractual Obligation. Oxford Journal of Legal Studies 26 (1):41-71.
    Although there is an increasing body of opinion that awards of damages for breach of contract should take account of the claimant’s performance interest, there has been little in the way of analysis of what the performance interest is. Commonly the concept is put forward as simply a reformulation or reconceptualization of the expectation interest, itself hitherto regarded as the one true contractual interest. Such thinking is flawed. A closer analysis of contract doctrine shows there to be two distinct contractual (...)
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  39. 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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  40. John Wightman (2000). Intimate Relationships, Relational Contract Theory, and the Reach of Contract. Feminist Legal Studies 8 (1):93-131.
    This article explores the role of contract law inintimate relationships, focussing on tacit or onlypartially express agreements rather than expressprenuptial or cohabitation contracts. It welcomes theembrace of relational contract theory by feminist andgay and lesbian commentators, but argues that keydifferences between commercial and intimaterelationships need further analysis if the potentialof relational theory in cases of informal agreement isto be realised. The first difference is that,while commercial contracts can draw on the context ofa contracting community as a source of norms to (...)
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  41. Luke Wilson (1993). Ben Jonson and the Law of Contract. Cardozo Studies in Law and Literature 5 (2):281-306.
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  42. A. D. Woozley (1982). Charles Fried, Contract as Promise: A Theory of Contractual Obligation Reviewed By. Philosophy in Review 2 (4):168-170.
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  43. Wojciech Załuski (2011). On the Applications of Game Theory in Contract Law. In Jerzy Stelmach & Wojciech Załuski (eds.), Game Theory and the Law. Copernicus Center Press.
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  44. 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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Contracts
  1. W. H. Beveridge (1908). Book Review:Roman Private Law. R. W. Leage. [REVIEW] Ethics 18 (4):525-.
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  2. Brian Bix (2010). Contracts. In Franklin G. Miller & Alan Wertheimer (eds.), The Ethics of Consent: Theory and Practice. Oxford University Press.
    Consent, in terms of voluntary choice, is - or, at least, appears to be or purports to be - at the essence of contract law. Contract law, both in principle and in practice, is about allowing parties to enter arrangements on terms they choose - each party imposing obligations on itself in return for obligations another party has placed upon itself. This freedom of contract- an ideal by which there are obligations to the extent, but only to the extent, freely (...)
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  3. Brian Bix (2008). Contract Rights and Remedies, and the Divergence Between Law and Morality. Ratio Juris 21 (2):194-211.
    There is an ongoing debate in the philosophical and jurisprudential literature regarding the nature and possibility of Contract theory. On one hand are those who argue (or assume) that there is, or should be, a single, general, universal theory of Contract Law, one applicable to all jurisdictions and all times. On the other hand are those who assert that Contract theory should be localized to particular times and places, perhaps even with different theories for different types of agreements. This article (...)
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  4. Andrew Botterell (2013). Review of Katy Barnett, Accounting for Profit for Breach of Contract. [REVIEW] Canadian Business Law Journal 54:99-106.
    A review of Katy Barnett, Accounting for Profit for Breach of Contract (Hart Publishing, 2012).
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  5. Andrew Botterell (2010). Contractual Performance, Corrective Justice, and Disgorgement for Breach of Contract. Legal Theory 16 (3):135-160.
    This paper is about the remedy of disgorgement for breach of contract. In it I argue for two conclusions. I first argue that, prima facie at least, disgorgement damages for breach of contract present something of a puzzle. But second, I argue that if we pay close attention to the notion of contractual performance, this puzzle can be resolved in a way that is consistent with principles of corrective justice. In particular, I suggest that even if a contract gives the (...)
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  6. Richard Bronaugh (1983). A Secret Paradox of the Common Law. Law and Philosophy 2 (2):193 - 232.
    This essay recounts a fascinating if complicated piece of Anglo-American debate. My aim is to reach a conclusion about the importance of the notion of changing one's normative position as part of the act of giving sufficient consideration for a legal contract. In several journals and textbooks between 1894 and 1918 the major contract scholars of the time, e.g., Langdell, Anson, Pollock, Williston, Ames, and Corbin, discussed a special example which was thought to reveal a paradox in the common law (...)
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