Private Law

Edited by Ori Herstein (King's College London, Hebrew University of Jerusalem)
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  1. Markets, Rights, and Discrimination by Customers.Heather Whitney - 2016 - Iowa Law Review 1 (102).
    This essay is designed to do two things: -/- First, review and critique Katharine Bartlett and Mitu Gulati's Discrimination by Customers, 102 Iowa L. Rev. 223 (2016). -/- Second, stand alone as a piece that more generally evaluates (1) efficacy and (2) autonomy- and constitutional-based objections to the regulation (both in direct and indirect form) of customer discrimination.
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  2. It's Something Personal: On the Relationality of Duty and Civil Wrongs.John Oberdiek - 2020 - In John Oberdiek & Paul Miller (eds.), Civil Wrongs and Justice in Private Law. New York, NY, USA:
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  3. Civil Wrongs and Justice in Private Law.John Oberdiek & Paul Miller (eds.) - 2020 - New York, NY, USA: Oxford University Press.
    Civil wrongs occupy a significant place in private law. They are particularly prominent in tort law, but equally have a place in contract law, property and intellectual property law, unjust enrichment, fiduciary law, and in equity more broadly. Civil wrongs are also a preoccupation of leading general theories of private law, including corrective justice and civil recourse theories. According to these and other theories, the centrality of civil wrongs to civil liability shows that private law is fundamentally concerned with the (...)
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  4. Constitutionalizing Connectivity: The Constitutional Grid of World Society.Poul F. Kjaer - 2018 - Journal of Law and Society 45 (S1):114-34.
    Global law settings are characterized by a structural pre-eminence of connectivity norms, a type of norm which differs from coherency or possibility norms. The centrality of connectivity norms emerges from the function of global law, which is to increase the probability of transfers of condensed social components, such as economic capital and products, religious doctrines, and scientific knowledge, from one legally structured context to another within world society. This was the case from colonialism and colonial law to contemporary global supply (...)
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  5. Enslaving the Image: The Origins of the Tort of Appropriation of Identity Reconsidered: Jonathan Kahn.Jonathan Kahn - 1996 - Legal Theory 2 (4):301-324.
    There is no escaping the fact that law shapes identity. Laws tells us who we are and where we stand in society. While sometimes benign, such classification can also be a devastatingly powerful instrument of ostracism and subjugation. Legally enforced racial segregation sent a cold and harsh message about what the dominant society thought it meant to be black. The recent backlash against affirmative action resurrects degrading stereotypes and sends old messages wrapped in new code words about racial identity. “English-only” (...)
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  6. Grounds of Liability: An Introduction to the Philosophy of Law. Alan R. White.J. H. Bogart - 1987 - Ethics 97 (3):673-674.
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  7. Les Concepts Souffrent-Ils de Négligence Bénigne En Sciences Sociales? Eléments D’Analyse Conceptuelle Et Examen Exploratoire de la Littérature Francophone À Caractère Méthodologique.Pierre-Marc Daigneault & Steve Jacob - 2012 - Social Science Information 51 (2):188-204.
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  8. Singapore. The Effect of Contract on the Law Governing Claims in Torts and Equity.Andrea Bonomi & Paul Volken - 2009 - In Andrea Bonomi & Paul Volken (eds.), Yearbook of Private International Law: Volume Ix. Sellier de Gruyter.
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  9. Contract Law or Law of Obligations? – The Draft Common Frame of Reference as a Multifunction Tool.Reiner Schulze - 2009 - In Common Frame of Reference and Existing Ec Contract Law. Sellier de Gruyter.
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  10. Part One: Non-Contractual Liability and Contract Law.Ulrich Drobnig & Christian von Bar - 2009 - In Ulrich Drobnig & Christian von Bar (eds.), The Interaction of Contract Law and Tort and Property Law in Europe: A Comparative Study. Sellier de Gruyter.
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  11. Non-Contractual Liability Arising Out of Damage Caused to Another.Christian von Bar - 2009 - Sellier de Gruyter.
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  12. § 13. Damages.Alastair Mullis & Peter Huber - 2009 - In Alastair Mullis & Peter Huber (eds.), The Cisg: A New Textbook for Students and Practitioners. Sellier de Gruyter.
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  13. Contract Remedies From the Incentive Perspective.Gerhard Wagner - 2009 - In The Common Frame of Reference: A View From Law & Economics. Sellier de Gruyter.
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  14. The Remedies for Non-Performance in the Proposed Consumer Rights Directive and the Europeanisation of Private Law.Reiner Schulze & Geraint Howells - 2009 - In Reiner Schulze & Geraint Howells (eds.), Modernising and Harmonising Consumer Contract Law. Sellier de Gruyter.
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  15. Introducción a la antropología darwiniana.Patrick Tort - 1988 - Theoria: Revista de Teoría, Historia y Fundamentos de la Ciencia 4 (1):31-54.
    Patrick Tort, An lntroduction to Darwininian Anthopology. An lnterview with Georges Guille-Escuret. - Recalling how his book La pensée hiérarchique et l’evolution had, in 1983, reoriented the field of the interpretation of Darwinism, P. Tort contrasts “social Darwinism”- which was wrongly thought to be its consequence -with the very different truth represented by the anthropology of Darwin, which opens new perspectives for reflexion on the nature/culture and nature/society relationships. For over a century, this truth was not perceived, not even by (...)
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  16. Agent-Relative Prerogatives to Do Harm.Jonathan Quong - 2016 - Criminal Law and Philosophy 10 (4):815-829.
    In this paper, I offer two arguments in support of the proposition that there are sometimes agent-relative prerogatives to impose harm on nonliable persons. The first argument begins with a famous case where most people intuitively agree it is permissible to perform an act that results in an innocent person’s death, and where there is no liability-based or consequentialist justification for acting. I show that this case is relevantly analogous to a case involving the intentional imposition of lethal defensive harm (...)
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  17. Public Rights, Private Relations.Mark Tushnet - 2016 - Jurisprudence 7 (2):355-364.
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  18. Raz on Responsibility.Gary Watson - 2016 - Criminal Law and Philosophy 10 (3):395-409.
    Standard treatments of responsibility have been preoccupied with issues of blame and punishment, and concerns about free will. In contrast, Raz is concerned with problems about responsibility that arise from the “puzzle of moral luck,” puzzles that lead to misguided skepticism about negligence. We are responsible not only for conduct that is successfully guided by what we take to be our reasons for action, but also for misexercises of our rational capacities that escape our rational control. To deny this is (...)
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  19. Justice: Interdisciplinary Perspectives.Klaus R. Scherer (ed.) - 1992 - Cambridge University Press.
    In this book, which was originally published in 1992, Klaus Scherer brought together leading scholars from the social sciences to discuss theoretical and empirical studies of justice. They examined the nature of justice from the perspective of philosophy, economics, law, sociology and psychology, and explored possible lines of convergence. A critical examination of theories of justice from Plato and Aristotle, through Marx, to Rawls and Habermas heads a collection which addresses the role of justice in economics and the law and (...)
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  20. The Ethics of Breach of Contract.F. C. Sharp - 1934 - International Journal of Ethics 45 (1):27-53.
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  21. The Functional View of Legal Liability.Maurice Finkelstein - 1924 - International Journal of Ethics 34 (3):243-253.
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  22. The Philosophical Foundations of Environmental Law.Darrell Whitman - 2005 - Contemporary Political Theory 4 (3):338-340.
  23. Antitrust and the Making of European Tort Law.Niamh Dunne - 2016 - Oxford Journal of Legal Studies 36 (2):366-399.
    Efforts to develop a robust competition culture within the European Union, premised upon private enforcement of the EU competition rules, have gathered pace in recent years. This article examines the manner in which judicial innovation, coupled with legislative reinforcement, has rendered this area of primary importance in terms of the emergence of a distinct European tort law. In doing so, the article considers why this area has been singled out for such extensive vertical harmonisation, addressing this question from a variety (...)
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  24. Contract as Procedural Justice.Aditi Bagchi - 2016 - Jurisprudence 7 (1):47-84.
    The premise of contract law is that the redistribution of entitlements that results from contract is justified by the process of agreement. But theories of contract differ importantly on how and when voluntary exchange justifies a resorting of entitlements. Pure theories regard the principles of contract as essentially derivative from some aspect of the principle of autonomy; contracting parties’ intent to assume legal obligation is in principle necessary and sufficient for its enforcement. Perfect theories do not view contract as self-justifying (...)
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  25. Damages for Breach of Contract: Quantifying the Lost Consumer Surplus.Stephanie Mullen - 2016 - Oxford Journal of Legal Studies 36 (1):83-109.
    This article examines the current approach to the quantification of damages for non-pecuniary loss, and the issues that have arisen therein. Notwithstanding the acceptance by English contract law that certain forms of non-pecuniary loss are compensable, substantial difficulties still arise when attempting to quantify such loss. In particular, the courts have struggled to justify damages in cases that require some measurement of the value of the ‘subjective’ loss to the claimant. One method of measurement is the concept of consumer surplus, (...)
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  26. Private Law Exceptionalism? Part I: A Basic Difficulty with the Structural Arguments From Bipolarity and Civil Recourse.Avihay Dorfman - 2016 - Law and Philosophy 35 (2):165-191.
    Contemporary discussions of private law theory have sought to divine the deep structure and content of private law by reference to two key distinctions. First, the distinction between private and criminal law has been utilized to flesh out the distinctively bipolar structure of private law. Second, the distinction between formal and distributive equality has served to highlight the special terms of interaction established in private law. In these pages, I take up the former distinction, arguing that its theoretical significance is (...)
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  27. ERISA: State Tort Claim for Fraud and Negligent Misrepresentation Survives ERISA Preemption—Shea V. Esensten.Peter J. Van Hemel - 2000 - Journal of Law, Medicine and Ethics 28 (2):190-191.
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  28. ‘Losses in Any Event’ in the Case of Damage to Property.Samuel Beswick - 2015 - Oxford Journal of Legal Studies 35 (4):755-775.
    In several relatively recent decisions, the House of Lords and the Court of Appeal have declared, relying on a series of early 20th century admiralty cases, that the occurrence of supervening events is irrelevant to the determination of damages for negligent injury to property. The principle has been described as ‘a firm sub-rule’ that applies to cases of property damage but not to other categories of loss. This paper, conversely, contends that the proper and consistent position in law is that (...)
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  29. Corrective Vs. Distributive Justice: The Case of Apologies.Andrew Cohen - 2016 - Ethical Theory and Moral Practice 19 (3):663-677.
    This paper considers the relation of corrective to distributive justice. I discuss the shortfalls of one sort of account that holds these are independent domains of justice. To support a more modest claim that these are sometimes independent domains of justice, I focus instead on the case of apologies. Apologies are sometimes among the measures specified by corrective justice. I argue that the sorts of injustices that apologies can help to correct need not always be departures from ideals specified by (...)
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  30. Hospital Corporate Liability: The Trend Continues.Lee J. Dunn - 1980 - Journal of Law, Medicine and Ethics 8 (5):16-17.
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  31. Failure to Use Siderails: When Is It Negligence?Jane Greenlaw - 1982 - Journal of Law, Medicine and Ethics 10 (3):125-128.
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  32. Will the Tort of Bad Faith Breach of Contract Be Extended to Health Maintenance Organizations?Joanne B. Stern - 1983 - Journal of Law, Medicine and Ethics 11 (1):12-18.
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  33. The Philosophy of Tort Law as a Subfield.James Gordley - 2015 - Jurisprudence 6 (3):624-631.
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  34. Liability and Risk.David Mccarhty - 1996 - Philosophy and Public Affairs 25 (3):238-262.
  35. The Doctrine of Laesio Enormis in Lithuanian Contract Law.Tomas Chochrin & Rūta Lazauskaitė - 2015 - Jurisprudencija: Mokslo darbu žurnalas 21 (4):1163.
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  36. Bank's Liability for Paying Fraudulently Issued Cheques.E. P. Ellinger - 1985 - Oxford Journal of Legal Studies 5 (2):293-300.
  37. Contract Law as Fairness.Josse Klijnsma - 2015 - Ratio Juris 28 (1):68-88.
    This article examines the implications for contract law of Rawls' theory of justice as fairness. It argues that contract law as an institution is part of the basic structure of society and as such subject to the principles of justice. Discussing the basic structure in relation to contract law is particularly interesting because it is instructive for both contract law and Rawlsian theory. On the one hand, justice as fairness has clear normative implications for the institution of contract law. On (...)
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  38. Taking Private Law Seriously: A Review of Ernest J Weinrib, The Idea of Private Law. [REVIEW]Alberto Pino-Emhart - 2014 - Jurisprudence 5 (2):421-429.
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  39. Probabilistic Causation in Efficiency-Based Liability Judgments.Diego M. Papayannis - 2014 - Legal Theory 20 (3):210-252.
    In this paper I argue that economic theories have never been able to provide a coherent explanation of the causation requirement in tort law. The economic characterization of this requirement faces insurmountable difficulties, because discourse on tort liability cannot be reduced to a cost-benefit analysis without a loss of meaning. More seriously, I try to show that by describing causation in economic terms, economic theories offer an image of the practice in which the participants incur in logical contradictions and develop (...)
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  40. Strict Liability and the Mitigation of Moral Luck.Greg Keating - 2006 - Journal of Ethics and Social Philosophy 2 (1):1-34.
    The general problem of moral luck—that responsibility is profoundly affected by factors beyond the control of the person held responsible—is often said to cause special problems for strict liability, as opposed to negligence liability. Negligence, the argument runs, holds people responsible for both fault and fate whereas strict liability holds people accountable solely for fate. This criticism is off the mark, both in its specific claim and in its general implications. The specific criticism is mistaken because the choice between negligence (...)
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  41. Roman Private Law, by H. W. Leage. [REVIEW]W. H. Beveridge - 1907 - Ethics 18:525.
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  42. School Crime and Violence: Achieving Deterrence Through Tort Law.Gregory Evans - 1988 - Notre Dame Journal of Law, Ethics and Public Policy 3 (2):501.
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  43. A Particle Of Freedom: The Kantian Theory Of Transfer By Contract And Natural Law Thought.Helge Dedek - 2012 - Canadian Journal of Law and Jurisprudence 25 (2):313-346.
    Modern contract law theorists frequently invoke Kantian ideas to conceptualize contract as a form of immediate transfer. The Kantian theory of contract itself is eclectic: Kant makes use of the main conceptual building blocks of Natural Law contract doctrine – promise and transfer. Yet Kant re-arranges and adapts them to his own epistemology and conceptual system. I submit that because of this connection, additional light can be shed on Kant’s theory of contract by placing it in the context of contemporary (...)
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  44. Troubled Foundations for Private Law.Stephen Smith - 2008 - Canadian Journal of Law and Jurisprudence 21 (2):459-476.
    In The Foundations of Private Law James Gordley argues that the modern private law in common and civil law jurisdictions is best explained on the basis of a neo-Aristotelian theory first developed by a group of 16th century Spanish thinkers known as the ‘late scholastics’. The concepts of distributive and commutative justice that, according to Gordley, lay at core of the scholastics’ theory and that explain, respectively, modern property law and the law of obligations , though ignored and disparaged for (...)
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  45. The Religious Beliefs of Tort Victims: Religious Thin Skulls or Failures of Mitigation?Mark Ramsay - 2007 - Canadian Journal of Law and Jurisprudence 20 (2):399-428.
    A Jehovah’s Witness suffers severe injuries in an automobile accident, and these injuries result from another person’s negligent driving. The victim refuses to accept standard medical treatment, which includes blood transfusions. Had she accepted standard treatment, the victim would have been returned to a near normal life. As a result of her decision, she now faces the prospect of life in a wheel-chair. Should the tortfeasor be held liable for the additional damages that result from the victim’s religious decision, or (...)
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  46. Pseudo-Restitutionary Damages: Some Thoughts on the Dual Theory of Restitution for Wrongs.Francesco Giglio - 2009 - Canadian Journal of Law and Jurisprudence 22 (1):49-78.
    Restitution for civil wrongs, also known as restitutionary damages, is a legal response through which the defendant’s wrongful gain is awarded to the claimant. James Edelman has recently advocated two different restitutionary responses for wrongs. One response, termed ‘restitutionary damages’, would aim to compel the wrongdoer to give back to the victim a wrongful gain, whereas the other response, ‘disgorgement damages’, would oblige the wrongdoer to give up a wrongful gain for the benefit of the claimant. In the first case, (...)
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  47. Putting It in Writing: Drafting Faust's Contract with the Devil.Nishan Swais - 2001 - Canadian Journal of Law and Jurisprudence 14 (2):227-247.
    The Faust legend is familiar to us as the story of a man who agrees to sell his soul to the devil in exchange for a moment of absolute spiritual fulfilment. Since its first recorded telling some five hundred years ago, the legend has survived both as an expression of our need for transcendence - for "something more" - and as a cautionary tale about the manner in which we try to achieve it. This paper addresses the Faust legend from (...)
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  48. Quantum Physics in Private Law.Avner Levin - 2001 - Canadian Journal of Law and Jurisprudence 14 (2):249-259.
    Izhak Englard argues that Ernest Weinrib's idea of coherence in private law, based solely on corrective justice, must be modified to include distributive justice in order to better fit legal practice. Englard proposes complementarity, a framework accommodating mutually exclusive scientific concepts, as a basis for private law's coherence, based on an analogy between the concepts of light and justice. This analogy is insufficient as an epistemological basis common to science and law upon which complementarity can be applied as Englard suggests. (...)
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  49. Original Acquisition and Unilateralism: Kant, Hegel, and Corrective Justice.N. Sage - 2012 - Canadian Journal of Law and Jurisprudence 25 (1):119-136.
    Contemporary Kantians suggest that the original acquisition of property is problematic for Kant’s theory of private law. Kant requires that private law obligations be consistent with the equal freedom of everyone. However, a rule of original acquisition seems to favor the acquirer’s freedom over others’: the acquirer originally obtains property in an unowned object simply by taking control of it, and thus seems to impose obligations on everyone else through her own “unilateral” action or choice. This article first addresses proposed (...)
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  50. Professional Status and the Freedom to Contract: Towards a Common Law Duty of Non-Discrimination.Amon Reichman - 2001 - Canadian Journal of Law and Jurisprudence 14 (1):79-132.
    This paper suggests that Canadian common law doctrine, according to which businesses providing goods and services to the public at large are allowed to refuse service because of a customer's group-based characteristics such as race, is inconsistent with previous case law as well as with the underlying reason-based structure of the common law. After suggesting that the common law has not been fully displaced by human rights legislation, the paper demonstrates that the common law contains three concrete articulations of a (...)
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