Private Law, Misc

Edited by Ori Herstein (King's College London, Hebrew University of Jerusalem)
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  1. Roger W. Shuy: The Language of Defamation Cases. [REVIEW]Janet Ainsworth - 2012 - International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique 25 (3):431-437.
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  2. 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, (...)
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  3. 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 (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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  4. 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 (...)
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  5. 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).
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  6. 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, (...)
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  7. The Instrumental Justice of Private Law.Alan Calnan - unknown
    Instrumentalists and deontologists have long battled for an exclusive theory of private law. The instrumentalists have argued that private law is merely a means to achieving any number of political or social ends. Deontologists, by contrast, have contended that the law seeks only the moral end of justice and cannot be used for anything else. In this article, I critique these extreme positions and offer an intermediate theory called "instrumental justice." I show that the absolute instrumental view is elusive, illusory, (...)
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  8. Eu Fundamental Rights, Ec Freedoms and Private Law.Olha O. Cherednychenko - unknown
    Originally, private law was considered to be immune from the effect of fundamental rights, the function of which was limited to being individual defenses against the vigilant eye of the state. This traditional view, however, has been put under pressure as a result of the growing effect of fundamental rights in private law, which makes it possible to speak about the tendency towards the constitutionalization of private law. Although until recently this tendency has primarily manifested itself in the national law (...)
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  9. Just and Unjust Enrichments.Hanoch Dagan - 2009 - In Andrew Robertson & Hang Wu Tang (eds.), The Goals of Private Law. Hart.
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  10. On the Autonomy of Corrective Justice.Dennis Klimchuk - 2003 - 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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  11. 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.
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  12. Legal Scholarship and Doctrines of Private Law, 13th-18th Centuries.R. Feenstra - 1996
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  13. Justifying Fiduciary Allowances.Matthew Harding - 2009 - In Andrew Robertson & Hang Wu Tang (eds.), The Goals of Private Law. Hart.
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  14. 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.
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  15. 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 (...)
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  16. 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 (...)
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  17. Taxation, the Private Law, and Distributive Justice.Kevin A. Kordana & David H. Blankfein 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 (...)
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  18. Altruism in Private Law: Liability for Nonfeasance and Negotiorum Gestio.Jeroen Kortmann - 2005 - Oxford University Press.
    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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  19. 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 (...)
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  20. 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 (...)
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  21. What's Private About Private Law?William Lucy - 2009 - In Andrew Robertson & Hang Wu Tang (eds.), The Goals of Private Law. Hart.
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  22. Descriptions of Behavior and Behavioral Concepts in Private Law.Maksymilian T. Madelr - manuscript
    Every description contains within it a qualifier that allows us to avoid the problem of descriptive regress, and thus allows us to use the description for various purposes. Descriptive regress occurs because no one description can be understood without referring to further descriptions, which themselves require unpacking by reference to further descriptions ad infinitum. There are no fundamental descriptions no descriptions that attain and keep some privileged ontological status. The qualifier works by invoking the normal circumstances in which the description (...)
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  23. 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.
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  24. Value, Property and Unjust Enrichment: Trusts of Traceable Proceeds.Je Penner - unknown
    Restitution lawyers commonly speak of the 'transfer' of value; this is misconceived. Values are realised, not transferred, only property rights are transferred. This realisation distinctly illuminates the relationship between the law of restitution and the law of tracing, strongly suggesting that trusts of traceable proceeds are not examples of restitutionary entitlements which reverse unjust enrichments.
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  25. Unjust Enrichment and European Community Law.Williams Rebecca - 2001 - Oxford Journal of Legal Studies 21 (3).
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  26. Constraints on Policy-Based Reasoning in Private Law.Andrew Robertson - 2009 - In Andrew Robertson & Hang Wu Tang (eds.), The Goals of Private Law. Hart.
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  27. Introduction : Goals Rights and Obligations.Andrew Robertson - 2009 - In Andrew Robertson & Hang Wu Tang (eds.), The Goals of Private Law. Hart.
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  28. The Goals of Private Law.Andrew Robertson & Hang Wu Tang (eds.) - 2009 - Hart.
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  29. The Rules of Obligations.Emily Sherwin - 2009 - In Andrew Robertson & Hang Wu Tang (eds.), The Goals of Private Law. Hart.
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  30. 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 (...)
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  31. 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 (...)
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  32. Rule-Based Rights and Court-Ordered Rights.Stephen A. Smith - 2012 - In Donal Nolan & Andrew Robertson (eds.), Rights and Private Law. Hart.
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  33. The Rights of Private Law.Stephen A. Smith - 2009 - In Andrew Robertson & Hang Wu Tang (eds.), The Goals of Private Law. Hart.
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  34. European Private Law and Democracy: A Misunderstood Relationship.Jan M. Smits - unknown
    An important strand of scholarship claims that creating a new European private law (such as the drafting of a Common Frame of Reference for European Private Law) should not primarily be the work of legal scholars, but of politicians and parliaments. Another view would purportedly lead to a lack of democratic legitimacy. This raises the more general question what should be the exact relationship between private law and (national) democracy. This contribution - written in the Festschrift for Anthony Ogus - (...)
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  35. 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.
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  36. Rights and Other Things.Robert Stevens - 2012 - In Donal Nolan & Andrew Robertson (eds.), Rights and Private Law. Hart.
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  37. The Conflict of Rights.Robert Stevens - 2009 - In Andrew Robertson & Hang Wu Tang (eds.), The Goals of Private Law. Hart.
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  38. Liability for the Bad Behaviour of Others.Susan Bright - 2001 - Oxford Journal of Legal Studies 21 (2):311-330.
    This article considers the question of whether a landowner should be responsible for nuisance behaviour which is committed by other people from his land. Recent years have seen a number of cases being brought, particularly against local authority landlords, as victims of nuisance try to get someone to do something about the problem. The case law is somewhat mixed on this and the courts have shown a readiness to apply the approach followed in the more traditional nuisance cases involving pollution (...)
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  39. Deterrence in Private Law.Yock Lin Tan - 2009 - In Andrew Robertson & Hang Wu Tang (eds.), The Goals of Private Law. Hart.
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  40. 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.
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  41. A. R. White, "Grounds of Liability". [REVIEW]Jeremy Waldron - 1987 - Philosophical Quarterly 37 (46):116.
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  42. 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.
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  43. 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?
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  44. Private Nuisance Law : A Window on Substantive Justice.Richard W. Wright - 2012 - In Donal Nolan & Andrew Robertson (eds.), Rights and Private Law. Hart.
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  45. Storytelling in the Law of Unjust Enrichment.Tang Hang Wu - 2009 - In Andrew Robertson & Hang Wu Tang (eds.), The Goals of Private Law. Hart.
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  46. 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 (...)
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