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Private Law

Edited by Ori Herstein (King's College London)
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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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  7. Jeffrey Burkhardt (1986). Agribusiness Ethics: Specifying the Terms of the Contract. [REVIEW] Journal of Business Ethics 5 (4):333 - 345.
    Agricultural production in the western world in our time is primarily agribusiness. As such, a business ethics approach can be extended to agricultural production. Given the nature of the agricultural production system, however, not only are general principles for business ethics applicable, but more specific obligations need to be generated. A social contract approach such as Donaldson's, with modifications, serves to provide both the general principles for the ethical practice of agribusiness, as well as more specific obligations for agents in (...)
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  8. Jules L. Coleman (ed.) (1994). Private Law Theory. Garland Pub..
    The Tragedy of the Commons The population prohlem has no technical solution; it requires a fundamental extension in morality. ...
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  9. Terence Daintith & Gunther Teubner (eds.) (1986). Contract and Organisation: Legal Analysis in the Light of Economic and Social Theory. W. De Gruyter.
    Sociological Jurisprudence and Legal Economics: Risks and Rewards Terence Daintith gunther teubner Firenze Introduction Contract and Organisation - these ...
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  10. Phan Minh Dung & Phan Minh Thang (2009). Modular Argumentation for Modelling Legal Doctrines in Common Law of Contract. Artificial Intelligence and Law 17 (3):167-182.
    To create a programming environment for contract dispute resolution, we propose an extension of assumption-based argumentation into modular assumption-based argumentation in which different modules of argumentation representing different knowledge bases for reasoning about beliefs and facts and for representation and reasoning with the legal doctrines could be built and assembled together. A distinct novel feature of modular argumentation in compare with other modular logic-based systems like Prolog is that it allows references to different semantics in the same module at the (...)
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  11. R. G. Frey & Christopher W. Morris (eds.) (1991). Liability and Responsibility: Essays in Law and Morals. Cambridge University Press.
    This collection of contemporary essays by a group of well-known philosophers and legal theorists covers various topics in the philosophy of law, focusing on issues concerning liability in contract, tort, and criminal law. The book is divided into four sections. The first provides a conceptual overview of the issues at stake in a philosophical discussion of liability and responsibility. The second, third, and fourth sections present, in turn, more detailed explorations of the roles of notions of liability and responsibility in (...)
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  12. Margaret Gilbert (1999). Reconsidering the “Actual Contract” Theory of Political Obligation. Ethics 109 (2):236-260.
    Do people have obligations by virtue of the fact that a given country is their country? Actual contract theory says they do because they have agreed to act in certain ways. Contemporary philosophers standardly object in terms of the 'no agreement' objection and the 'not morally binding' objection. I argue that the 'not morally binding' objection is not conclusive. As for the 'no agreement' objection, though actual contract theory succumbs, a closely related plural subject theory of political obligation does not. (...)
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  13. B. I. X. H. (2008). Contract Rights and Remedies, and the Divergence Between Law and Morality. Ratio Juris 21 (2):194-211.
    Abstract. 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 (...)
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  14. Louis-Philippe Hodgson (2011). Collective Action and Contract Rights. Legal Theory 17 (3):209-26.
    The possibility of collective action is essential to human freedom. Yet, as Rousseau famously argued, individuals acting together allow themselves to depend on one another’s choices and thereby jeopardize one another’s freedom. These two facts jointly constitute what I call the normative problem of collective action. I argue that solving this problem is harder than it looks. It cannot be done merely in terms of moral obligations; indeed, it ultimately requires putting in place a full-fledged system of contract rights. The (...)
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  15. Stig Jørgensen (1978). Values in Law: Ideas, Principles and Rules. Juristforbundet.
    Ideology and science.--Idealism and realism in jurisprudence.--Symmetry and justice.--Grotius's Doctrine of contract.--Legal positivism and natural law.--Natural law today.--Argumentation and decision.
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  16. Dori Kimel (2001). Neutrality, Autonomy, and Freedom of Contract. Oxford Journal of Legal Studies 21 (3):473-494.
    The article examines the popular notion that liberalism, or liberal theory of contract, is committed to a particularly rigid conception of the freedom of contract. The article argues that this notion is mistaken, and seeks to identify its roots in certain misconceptions of modern liberalism and its implications, and in a certain misunderstanding concerning the nature of contract. Neutral political concern, the value of personal autonomy, and finally the belief that contracts are identical to promises in terms of their significance (...)
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  17. Jody S. Kraus, From Langdell to Law and Economics: Two Conceptions of Stare Decisis in Contract Law and Theory.
    In his classic monograph, The Death of Contract, Grant Gilmore argued that Christopher Columbus Langdell, Oliver Wendell Holmes, and Samuel Williston trumped up the legal credentials for their classical bargain theory of contract law. Gilmore's analysis has been subjected to extensive criticism, but its specific, sustained, and fundamental charge that the bargain theory was based on a fraudulent misrepresentation of precedential authority has never been questioned. In this Essay, I argue that Gilmore's case against the classical theorists rests on the (...)
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  18. William Lucy (2007). Philosophy of Private Law. Oxford University Press.
    In what, if any sense are our torts and our breaches of contract 'wrongs'? These two branches of private law have for centuries provided philosophers and jurists with grounds for puzzlement and this book provides both an outline of, and intervention in, contemporary jurisprudential debates about the nature and foundation of liability in private law.
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  19. Franklin G. Miller & Alan Wertheimer (eds.) (2010). The Ethics of Consent: Theory and Practice. Oxford University Press.
    This book assembles the contributions of a distinguished group of scholars concerning the ethics of consent in theory and practice.
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  20. Liam Murphy, Contract and Promise.
    A contract theory is an attempt both to make normative sense of contract law as an institutional type and to come up with criteria for the evaluation of the law of any particular place. There is no precise rule telling us how far the prescriptions of a theory can deviate from actually existing contract law and still be a theory of contract — rather than a political proposal to replace contract law with something else. But we can say roughly that (...)
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  21. Anders J. Persson (2006). The Contract of Employment - Ethical Dimensions. Journal of Business Ethics 66 (4):407 - 415.
    In this paper, the nature of the contract of employment is explored from an ethical point of view. It is argued that certain normative arguments should be taken into account in order to justify such a contract. Furthermore, an argument is developed against the claim that (a) the individual’s freedom of decision and (b) the practice of institutional arrangements are sufficient to justify a contract of employment. The dimensional analysis offered shows that further conditions are needed: (a) must be elaborated (...)
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  22. Michael J. Phillips (1994). Should We Let Employees Contract Away Their Rights Against Arbitrary Discharge? Journal of Business Ethics 13 (4):233 - 242.
    This article argues that the moral right to be discharged only for good cause and like rights can be contracted away by employees in appropriate circumstances. It maintains that the rights in question are not inalienable, and that there is nothing irrational about an employee''s wishing to deal them away. It also maintains that inequalities in bargaining power between employers and employees are insufficiently pervasive to justify a flat ban on the alienation of these rights. For a waiver of such (...)
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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. 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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  25. Ernest Joseph Weinrib (1995). The Idea of Private Law. Harvard University Press.
    The book combines philosophical exposition and legal analysis, and pays special attention to issues of tort law.
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Torts
  1. Larry A. Alexander (1987). Causation and Corrective Justice: Does Tort Law Make Sense? [REVIEW] Law and Philosophy 6 (1):1 - 23.
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  2. Roderick Bagshaw (2009). Tort Law, Concepts and What Really Matters. In Andrew Robertson & Hang Wu Tang (eds.), The Goals of Private Law. Hart Pub..
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  3. Michael D. Bayles & Bruce Chapman (1983). Values in the Law of Tort: A Symposium (Part II). [REVIEW] Law and Philosophy 2 (1):369-370.
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  4. Michael D. Bayles & Bruce Chapman (1982). Values in the Law of Tort: A Symposium. [REVIEW] Law and Philosophy 1 (3):369-370.
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  5. Theodore M. Benditt (1982). Liability for Failing to Rescue. Law and Philosophy 1 (3):391 - 418.
    Should there be civil liability when a person who could easily and without risk rescue another fails to do so? It is argued that the failure to act does not cause the harm that follows, and that the misfeasance/nonfeasance distinction provides no basis for liability. In spite of this, it is maintained that there can sometimes be a duty to rescue, and even a right to be rescued, even in the absence of a voluntary undertaking or an explicit assumption of (...)
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  6. W. H. Beveridge (1908). Book Review:Roman Private Law. R. W. Leage. [REVIEW] Ethics 18 (4):525-.
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  7. Andrew Botterell (2007). Property, Corrective Justice, and the Nature of the Cause of Action in Unjust Enrichment. Canadian Journal of Law and Jurisprudence 20:275-296.
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  8. 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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  9. Peter Cane (2007). The General/Special Distinction in Criminal Law, Tort Law and Legal Theory. Law and Philosophy 26 (5):465-500.
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  10. Peter Cane (2004). Gerald J. Postema, Ed., Philosophy and the Law of Torts:Philosophy and the Law of Torts. Ethics 114 (2):368-372.
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  11. Erika Chamberlain (2009). Negligent Investigation : Tort Law as Police Ombudsman. In Andrew Robertson & Hang Wu Tang (eds.), The Goals of Private Law. Hart Pub..
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  12. Jules L. Coleman, Theories of Tort Law. Stanford Encyclopedia of Philosophy.
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  13. Jules L. Coleman (ed.) (1994). Private Law Theory. Garland Pub..
    The Tragedy of the Commons The population prohlem has no technical solution; it requires a fundamental extension in morality. ...
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  14. Jules L. Coleman (1993). Contracts and Torts. Law and Philosophy 12 (1):71 - 93.
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  15. Jules L. Coleman (1992/2002). Risks and Wrongs. Oxford University Press.
    This book by one of America's preeminent legal theorists is concerned with the conflict between the goals of justice and economic efficiency in the allocation of risk, especially risk pertaining to safety. The author approaches his subject from the premise that the market is central to liberal political, moral, and legal theory. In the first part of the book, he rejects traditional "rational choice" liberalism in favor of the view that the market operates as a rational way of fostering stable (...)
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  16. Jules L. Coleman (1988/1998). Markets, Morals, and the Law. Oxford University Press.
    This collection of essays by one of America's leading legal theorists is unique in its scope: it shows how traditional problems of philosophy can be understood more clearly when considered in terms of law, economics, and political science.
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  17. Jules L. Coleman (1983). Moral Theories of Torts: Their Scope and Limits: Part II. [REVIEW] Law and Philosophy 2 (1):5 - 36.
    One approach to legal theory is to provide some sort of rational reconstruction of all or of a large body of the common law. For philosophers of law this has usually meant trying to rationalize a body of law under one or another principle of justice. This paper explores the efforts of the leading tort theorists to provide a moral basis - in the sense of rational reconstruction based on alleged moral principles - for the law of torts. The paper (...)
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  18. Jules L. Coleman (1982). Moral Theories of Torts: Their Scope and Limits: Part I. [REVIEW] Law and Philosophy 1 (3):371 - 390.
    One approach to legal theory is to provide some sort of rational reconstruction of all or of a large body of the common law. For philosophers of law this has usually meant trying to rationalize a body of law under one or another principle of justice. This paper explores the efforts of the leading tort theorists to provide a moral basis — for the law of torts. The paper is divided into two parts. In the first part I consider and (...)
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  19. Michael L. Corrado (2001). Egalitarianism and the Problem of Tort Liability. Noûs 35 (s1):388-419.
    Is the negligence standard in accident law acceptable to the egalitarian? The egalitarian - the egalitarian who would compensate only losses for which the actor was not responsible - cannot accept either a system of strict liability for all accidents or a system of social insurance for all accidents. A system of tort law acceptable to the responsibility - egalitarian must be a system based on negligence. But what will negligence mean? A negligence system in which the notion of reasonableness (...)
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  20. Carl F. Cranor (2005). The Science Veil Over Tort Law Policy: How Should Scientific Evidence Be Utilized in Toxic Tort Law? [REVIEW] Law and Philosophy 24 (2):139 - 210.
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  21. Carl Cranor & Kurt Nutting (1990). Scientific and Legal Standards of Statistical Evidence in Toxic Tort and Discrimination Suits. Law and Philosophy 9 (2):115 - 156.
    Many legal disputes turn on scientific, especially statistical, evidence. Traditionally scientists have accepted only that statistical evidence which satisfies a 95 percent (or 99 percent) rule — that is, only evidence which has less than five percent (or one percent) probability of resulting from chance.The rationale for this rule is the reluctance of scientists to accept anything less than the best-supported new knowledge. The rule reflects the internal needs of scientific practice. However, when uncritically adopted as a rule for admitting (...)
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  22. Kai Devlin (1997). Rights, Necessity, and Tort Liability. Journal of Social Philosophy 28 (2):87-100.
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  23. Avihay Dorfman (2010). Can Tort Law Be Moral? Ratio Juris 23 (2):205-228.
    According to the established orthodoxy, the law of private wrongs—especially common law torts—fails to map onto our moral universe. Four objections in particular have caught the imagination of skeptics about the moral foundations of tort law: They purport to cast doubt over the moral appeal of the duty of care element; they target the seemingly inegalitarian objective standard of care; they object to the morally arbitrary elements of factual causation and harm; and they complain about the unnecessary extension of liability (...)
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  24. Thomas Douglas (2009). Medical Injury Compensation: Beyond 'No-Fault'. Medical Law Review 17:30-51.
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  25. R. R. Dyer (1965). Aristotle's Categories of Voluntary Torts ( E.N. V. 1135b8–25). The Classical Review 15 (03):250-252.
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