Private Law, Misc

Edited by Ori Herstein (King's College London, Hebrew University of Jerusalem)
Related categories
Siblings:

63 found
Order:
1 — 50 / 63
  1. Civil Liability and the 50%+ Standard of Proof.Martin Smith - 2021 - International Journal of Evidence and Proof 25 (3):183-199.
    The standard of proof applied in civil trials is the preponderance of evidence, often said to be met when a proposition is shown to be more than 50% likely to be true. A number of theorists have argued that this 50%+ standard is too weak – there are circumstances in which a court should find that the defendant is not liable, even though the evidence presented makes it more than 50% likely that the plaintiff’s claim is true. In this paper, (...)
    Remove from this list   Direct download (2 more)  
     
    Export citation  
     
    Bookmark  
  2. Justifying Standing to Give Reasons: Hypocrisy, Minding Your Own Business, and Knowing One's Place.Ori J. Herstein - 2020 - Philosophers' Imprint 20 (7).
    What justifies practices of “standing”? Numerous everyday practices exhibit the normativity of standing: forbidding certain interventions and permitting ignoring them. The normativity of standing is grounded in facts about the person intervening and not on the validity of her intervention. When valid, directives are reasons to do as directed. When interventions take the form of directives, standing practices may permit excluding those directives from one’s practical deliberations, regardless of their validity or normative weight. Standing practices are, therefore, puzzling – forbidding (...)
    Remove from this list   Direct download (2 more)  
     
    Export citation  
     
    Bookmark  
  3. State Estoppel.Dennis Klimchuk - 2020 - Law and Philosophy 39 (3):297-323.
    It is a recurring idea in the history of political philosophy that concepts and doctrines of private law are illuminative of public law and political philosophy. Central among these are contract and the trust. In this paper, I consider the prospects of a third: estoppel. The public law context in which estoppel is most commonly invoked is criminal law, and there especially in the service of understanding the defenses of entrapment and what I call officially induced mistake of law. My (...)
    Remove from this list   Direct download (2 more)  
    Translate
     
     
    Export citation  
     
    Bookmark  
  4. Irit Samet, Equity: Conscience Goes to Market. [REVIEW]Manish Oza - 2020 - University of Toronto Law Journal 7 (2):216-222.
    Remove from this list   Direct download (2 more)  
     
    Export citation  
     
    Bookmark  
  5. Capabilities, Political Liberalism and Private Law.Thom Brooks - 2019 - Archiv Fuer Rechts Und Sozialphilosphie 104 (4):556-569.
    This article argues political liberalism can and should be revised to improve its relevance to the private law. This approach is not a rejection of political liberalism, but instead a restatement consistent with the fundamental tenets of Rawls's theory of justice. The first part begins with a brief summary of Rawls's political liberalism. The second part discusses the strategies used to demonstrate the relevance of Rawls's theory to the private law. The third part examines how Rawls's theory can and should (...)
    Remove from this list  
     
    Export citation  
     
    Bookmark  
  6. Rethinking Corporate Agency in Business, Philosophy, and Law.Samuel Mansell, John Ferguson, David Gindis & Avia Pasternak - 2019 - Journal of Business Ethics 154 (4):893-899.
    While researchers in business ethics, moral philosophy, and jurisprudence have advanced the study of corporate agency, there have been very few attempts to bring together insights from these and other disciplines in the pages of the Journal of Business Ethics. By introducing to an audience of business ethics scholars the work of outstanding authors working outside the field, this interdisciplinary special issue addresses this lacuna. Its aim is to encourage the formulation of innovative arguments that reinvigorate the study of corporate (...)
    Remove from this list   Direct download (3 more)  
     
    Export citation  
     
    Bookmark  
  7. Is There a Case for Strict Liability?Larry Alexander - 2018 - Criminal Law and Philosophy 12 (3):531-538.
    In this short paper, I shall answer the title’s question first in the context of criminal law and then in the context of tort law. In that latter section, I shall also mention in passing contractual and other forms of civil liability that are strict, although they will not be my principal focus. My conclusions will be that strict liability is never proper as the basis for retributive punishment; that it is a very crude device for achieving deterrence through nonretributive (...)
    Remove from this list   Direct download (2 more)  
     
    Export citation  
     
    Bookmark  
  8. Droit de la robotique: Livre blanc.Alain Bensoussan & Renaud Champion - 2016 - SYMOP.
    Histoire et utilisation du robot Bien que la robotique soit un marché économique relativement jeune et en pleine croissance, la genèse des robots remonte à l’Antiquité. Le premier robot à être déployé sur des lignes d’assemblage est Unimate, utilisé dès 1961 par General Motors. La robotique, en se di usant dans tous les pans de notre économie, va impacter les business modèles de nombreuses industries comme l’automobile et l’aéronautique mais aussi la construction ou l’agriculture. Aujourd’hui les robots industriels et de (...)
    Remove from this list   Direct download  
    Translate
     
     
    Export citation  
     
    Bookmark  
  9. A Complainant-Oriented Approach to Unconscionability and Contract Law.Nicolas Cornell - 2016 - University of Pennsylvania Law Review 164:1131-1175.
    This Article draws attention to a conceptual point that has been overlooked in recent discussions about the theoretical foundations of contract law. I argue that, rather than enforcing the obligations of promises, contract law concerns complaints against promissory wrongs. This conceptual distinction is easy to miss. If one assumes that complaints arise whenever an obligation has been violated, then the distinction does not seem meaningful. I show, however, that an obligation can be breached without giving rise to a valid complaint. (...)
    Remove from this list   Direct download  
     
    Export citation  
     
    Bookmark   1 citation  
  10. The Puzzle of the Beneficiary's Bargain.Nicolas Cornell - 2015 - Tulane Law Review 90:75-128.
    This Article describes a jurisprudential puzzle—what I call the puzzle of the beneficiary’s bargain—and contends that adequately resolving this puzzle will require significant revisions to basic premises of contract law. The puzzle arises when one party enters into two contracts requiring the same performance, and the promisee of the second contract is the third-party beneficiary of the first. For example, a taxi driver contracts with a woman to transport her parents from the airport next week, and then the driver separately (...)
    Remove from this list   Direct download  
     
    Export citation  
     
    Bookmark  
  11. The Power to Bequeath.Robert Lamb - 2014 - 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 (...)
    Remove from this list   Direct download (4 more)  
     
    Export citation  
     
    Bookmark   1 citation  
  12. Virtuous Circularity: Positive Law and Particular Justice.Claudio Michelon - 2014 - Ratio Juris 27 (2):271-287.
    This paper argues that the positive allocative decisions paradigmatically carried out by the application of legal rules are a necessary condition for arguments about particular justice (i.e., distributive and commutative justice) to make sense. If one shifts the focus from the distinction between distributive and commutative justice to what the two aspects of particular justice are for, namely, providing criteria to judge the allocation of goods, it becomes clear that the distinction is conceptually unstable. The paper argues that stabilizing the (...)
    Remove from this list   Direct download (5 more)  
     
    Export citation  
     
    Bookmark  
  13. Negating and Counterbalancing: A Fundamental Distinction in the Concept of a Corrective Duty. [REVIEW]Adam Slavny - 2014 - 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 (...)
    Remove from this list   Direct download (5 more)  
     
    Export citation  
     
    Bookmark   1 citation  
  14. Coherence, Evidence, and Legal Proof.Amalia Amaya - 2013 - Legal Theory 19 (1):1-43.
    The aim of this essay is to develop a coherence theory for the justification of evidentiary judgments in law. The main claim of the coherence theory proposed in this article is that a belief about the events being litigated is justified if and only if it is a belief that an epistemically responsible fact finder might hold by virtue of its coherence in like circumstances. The article argues that this coherentist approach to evidence and legal proof has the resources to (...)
    Remove from this list   Direct download (8 more)  
     
    Export citation  
     
    Bookmark   5 citations  
  15. By the Ties of Natural Justice and Equity. [REVIEW]Andrew Botterell - 2013 - 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).
    Remove from this list   Direct download  
     
    Export citation  
     
    Bookmark  
  16. A Legal Right to Do Legal Wrong.Ori J. Herstein - 2013 - 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 (...)
    Remove from this list   Direct download (6 more)  
     
    Export citation  
     
    Bookmark   4 citations  
  17. Private Law and Justice.Sandy Steel - 2013 - 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.
    Remove from this list   Direct download (6 more)  
     
    Export citation  
     
    Bookmark   1 citation  
  18. The Inner Morality of Private Law.Benjamin C. Zipursky - 2013 - 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 (...)
    Remove from this list   Direct download (6 more)  
     
    Export citation  
     
    Bookmark  
  19. Roger W. Shuy: The Language of Defamation Cases: Oxford University Press, New York, 2010, 251 Pp, ISBN 978-0-19-539132-9. [REVIEW]Janet Ainsworth - 2012 - International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique 25 (3):431-437.
    Remove from this list   Direct download (3 more)  
     
    Export citation  
     
    Bookmark  
  20. Rule-Based Rights and Court-Ordered Rights.Stephen A. Smith - 2012 - In Donal Nolan & Andrew Robertson (eds.), Rights and Private Law. Hart.
    Remove from this list  
     
    Export citation  
     
    Bookmark   1 citation  
  21. Rights and Other Things.Robert Stevens - 2012 - In Donal Nolan & Andrew Robertson (eds.), Rights and Private Law. Hart.
    Remove from this list  
     
    Export citation  
     
    Bookmark   1 citation  
  22. Corrective Justice.Ernest Joseph Weinrib - 2012 - 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?
    Remove from this list   Direct download  
     
    Export citation  
     
    Bookmark   8 citations  
  23. Private Nuisance Law : A Window on Substantive Justice.Richard W. Wright - 2012 - In Donal Nolan & Andrew Robertson (eds.), Rights and Private Law. Hart.
    Remove from this list  
     
    Export citation  
     
    Bookmark  
  24. Does Restitution for Wrongdoing Give Effect to Primary or Secondary Rights?Tareq Al-Twail - 2011 - Canadian Journal of Law and Jurisprudence 24 (2):243-275.
    There are two main and quite distinct contractual interests or rights constitutive of a contract. First, the interest in securing the contracted-for performance; secondly, the interest in ensuring, if that performance is not completely secured or not secured at all, that one is not left worse off as a result thereof. The claimant can bring a claim to give effect to his performance interest and/or can bring a claim to give effect to his compensation interest. It can be argued, however, (...)
    Remove from this list  
     
    Export citation  
     
    Bookmark  
  25. A Theory of Contract Law: Empirical Insights and Moral Psychology.Peter A. Alces - 2011 - 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 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, argues that (...)
    Remove from this list   Direct download  
     
    Export citation  
     
    Bookmark  
  26. Promises, Rights and Claims.David Alm - 2011 - Law and Philosophy 30 (1):51-76.
    The paper argues that promise rights presuppose independently existing (if not pre-existing) claims. The argument relies on the Bifurcation Thesis, according to which all claims, and all rights, can be exhaustively divided into two categories: capacity based and exercise based.
    Remove from this list   Direct download (6 more)  
     
    Export citation  
     
    Bookmark  
  27. Corporate Personality: A Politico-Jurisprudential Argument.Anthony Amatrudo - 2011 - Ratio Juris 24 (4):471-493.
    This article is an attempt to develop a practical politico-jurisprudential account of the corporate person, which it does by building on contemporary ideas about collective and shared intentions. It argues for a model of shared intentions, which posits a set of interlocking preferences, and other supporting attitudes. It examines the work of Bratman, Gilbert, Hurley, and Sugden and addresses issues of choice, coercion and will.
    Remove from this list   Direct download (6 more)  
     
    Export citation  
     
    Bookmark   1 citation  
  28. A Normative Theory of the Clean Hands Defense.Ori J. Herstein - 2011 - 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 (...)
    Remove from this list   Direct download (6 more)  
     
    Export citation  
     
    Bookmark  
  29. Through Thick and Thin: The Place of Corrective Justice in Unjust Enrichment.Zoë Sinel - 2011 - 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 (...)
    Remove from this list   Direct download (6 more)  
     
    Export citation  
     
    Bookmark  
  30. Normativity, Fairness, and the Problem of Factual Uncertainty.Andrew Botterell & Chris Essert - 2010 - 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, (...)
    Remove from this list   Direct download  
     
    Export citation  
     
    Bookmark  
  31. Just and Unjust Enrichments.Hanoch Dagan - 2009 - In Andrew Robertson & Hang Wu Tang (eds.), The Goals of Private Law. Hart.
    Remove from this list  
     
    Export citation  
     
    Bookmark  
  32. Gain-Based Remedies and the Place of Deterrence in the Law of Fiduciary Obligations.Anthony Duggan - 2009 - In Andrew Robertson & Hang Wu Tang (eds.), The Goals of Private Law. Hart.
    Remove from this list  
     
    Export citation  
     
    Bookmark  
  33. Justifying Fiduciary Allowances.Matthew Harding - 2009 - In Andrew Robertson & Hang Wu Tang (eds.), The Goals of Private Law. Hart.
    Remove from this list  
     
    Export citation  
     
    Bookmark  
  34. Looking Outward or Looking Inward? Obligations Scholarship in the Early 21st Cnetury.Steve Hedley - 2009 - In Andrew Robertson & Hang Wu Tang (eds.), The Goals of Private Law. Hart. pp. 193.
    Remove from this list   Direct download  
     
    Export citation  
     
    Bookmark  
  35. Gifts: A Study in Comparative Law.Richard Hyland - 2009 - Oup Usa.
    Gifts: A Study in Comparative Law is the first broad-based study of the law governing the giving and revocation of gifts ever attempted. First, gift-giving is everywhere governed by social and customary norms before it encounters the law. Second, the giving of gifts takes place largely outside of the marketplace. As a result of these two characteristics, the law of gifts provides an optimal lens through which to examine how different legal systems confront social practice. The law of gifts is (...)
    Remove from this list   Direct download  
     
    Export citation  
     
    Bookmark   1 citation  
  36. Analytical Jurisprudence and the Concept of Commercial Law.John Linarelli - 2009 - Penn State Law Review 114 (1):119-215.
    Commercial lawyers working across borders know that globalization has changed commercial law. To think of commercial law as only the law of states is to have an inadequate understanding of the norms governing commercial transactions. Some have argued for a transnational conception of commercial law, but their grounds of justification have been unpersuasive, often grounded on claims about the common content among national legal systems. Legal positivism is a rich literature on the concept of a legal system and the validity (...)
    Remove from this list   Direct download (2 more)  
     
    Export citation  
     
    Bookmark  
  37. What's Private About Private Law?William Lucy - 2009 - In Andrew Robertson & Hang Wu Tang (eds.), The Goals of Private Law. Hart.
    Remove from this list  
     
    Export citation  
     
    Bookmark  
  38. The Mutually Constitutive Nature of Public and Private Law.Mayo Moran - 2009 - In Andrew Robertson & Hang Wu Tang (eds.), The Goals of Private Law. Hart.
    Remove from this list  
     
    Export citation  
     
    Bookmark  
  39. Constraints on Policy-Based Reasoning in Private Law.Andrew Robertson - 2009 - In Andrew Robertson & Hang Wu Tang (eds.), The Goals of Private Law. Hart.
    Remove from this list  
     
    Export citation  
     
    Bookmark   1 citation  
  40. Introduction : Goals Rights and Obligations.Andrew Robertson - 2009 - In Andrew Robertson & Hang Wu Tang (eds.), The Goals of Private Law. Hart.
    Remove from this list  
     
    Export citation  
     
    Bookmark  
  41. The Goals of Private Law.Andrew Robertson & Hang Wu Tang (eds.) - 2009 - Hart.
    This collection contributes to a fundamentally important set of debates about the nature of private law. The essays consider whether private law should be seen as having goals and, if so, whether those goals are particular to private as opposed to public law. They consider the legitimacy of the pursuit of community welfare goals in private law and the place of instrumentalist thinking in private law scholarship. They explore the relationship between the pursuit of policy goals and the other influences (...)
    Remove from this list   Direct download  
     
    Export citation  
     
    Bookmark  
  42. The Rules of Obligations.Emily Sherwin - 2009 - In Andrew Robertson & Hang Wu Tang (eds.), The Goals of Private Law. Hart.
    Remove from this list  
     
    Export citation  
     
    Bookmark  
  43. The Rights of Private Law.Stephen A. Smith - 2009 - In Andrew Robertson & Hang Wu Tang (eds.), The Goals of Private Law. Hart.
    Remove from this list  
     
    Export citation  
     
    Bookmark   1 citation  
  44. The Conflict of Rights.Robert Stevens - 2009 - In Andrew Robertson & Hang Wu Tang (eds.), The Goals of Private Law. Hart.
    Remove from this list  
     
    Export citation  
     
    Bookmark  
  45. Deterrence in Private Law.Yock Lin Tan - 2009 - In Andrew Robertson & Hang Wu Tang (eds.), The Goals of Private Law. Hart.
    Remove from this list  
     
    Export citation  
     
    Bookmark  
  46. Demolishing the Pyramid : The Presence of Basis and Risk-Taking in the Law of Unjust Enrichment.Graham Virgo - 2009 - In Andrew Robertson & Hang Wu Tang (eds.), The Goals of Private Law. Hart.
    Remove from this list  
     
    Export citation  
     
    Bookmark  
  47. Treating Like Cases Alike : Principle and Classification in Private Law.Charlie Webb - 2009 - In Andrew Robertson & Hang Wu Tang (eds.), The Goals of Private Law. Hart.
    Remove from this list  
     
    Export citation  
     
    Bookmark  
  48. Storytelling in the Law of Unjust Enrichment.Tang Hang Wu - 2009 - In Andrew Robertson & Hang Wu Tang (eds.), The Goals of Private Law. Hart.
    Remove from this list  
     
    Export citation  
     
    Bookmark  
  49. A Suggested Basis for Legal Ontology.Anthony Amatrudo - 2008 - Ratio Juris 21 (1):19-38.
    It is often argued that associations are intelligent organisms with minds and intentional states of their own. It is also argued that groups are merely a plurality of individuals who are related or associated only in a specific and limited sense. This paper draws on both classical and contemporary scholarship to develop an ontological account of persons which has real-world legal and ethical implications.
    Remove from this list   Direct download (6 more)  
     
    Export citation  
     
    Bookmark  
  50. Taxation, the Private Law, and Distributive Justice.Kevin A. Kordana & David H. Tabachnick - 2006 - 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 (...)
    Remove from this list   Direct download (8 more)  
     
    Export citation  
     
    Bookmark   1 citation  
1 — 50 / 63