Private Law, Misc

Edited by Ori Herstein (King's College London, Hebrew University of Jerusalem)
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1 — 50 / 55
  1. added 2018-06-13
    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 (...)
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  2. added 2017-09-29
    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 (...)
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  3. added 2017-09-29
    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.
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  4. added 2017-08-25
    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. (...)
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  5. added 2017-08-25
    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 (...)
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  6. added 2017-08-15
    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.
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  7. added 2017-08-15
    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.
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  8. added 2017-08-15
    Concepts of Omission.Andrew Altman - 2005 - Legal Theory 11 (3):251-257.
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  9. added 2017-07-17
    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 (...)
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  10. added 2016-12-08
    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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  11. added 2016-12-08
    On the Autonomy of Corrective Justice.Klimchuk Dennis - 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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  12. added 2016-11-14
    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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  13. added 2016-03-21
    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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  14. added 2016-03-17
    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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  15. added 2015-09-16
    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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  16. added 2015-08-17
    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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  17. added 2015-08-17
    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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  18. added 2015-08-17
    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.
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  19. added 2015-08-17
    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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  20. added 2015-08-17
    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 (...)
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  21. added 2015-08-17
    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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  22. added 2015-08-17
    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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  23. added 2015-08-17
    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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  24. added 2015-08-17
    Unjust Enrichment and European Community Law.Williams Rebecca - 2001 - Oxford Journal of Legal Studies 21 (3).
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  25. added 2015-08-17
    Liability for the Bad Behaviour of Others.Bright Susan - 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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  26. added 2015-08-17
    Legal Scholarship and Doctrines of Private Law, 13th-18th Centuries.R. Feenstra - 1996
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  27. added 2015-08-17
    A. R. White, "Grounds of Liability". [REVIEW]Jeremy Waldron - 1987 - Philosophical Quarterly 37 (46):116.
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  28. added 2014-04-02
    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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  29. added 2014-03-30
    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. added 2014-03-30
    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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  31. added 2014-03-30
    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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  32. added 2014-03-30
    Justifying Fiduciary Allowances.Matthew Harding - 2009 - In Andrew Robertson & Hang Wu Tang (eds.), The Goals of Private Law. Hart.
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  33. added 2014-03-30
    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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  34. added 2014-03-30
    The Conflict of Rights.Robert Stevens - 2009 - In Andrew Robertson & Hang Wu Tang (eds.), The Goals of Private Law. Hart.
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  35. added 2014-03-30
    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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  36. added 2014-03-30
    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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  37. added 2014-03-30
    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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  38. added 2014-03-30
    Just and Unjust Enrichments.Hanoch Dagan - 2009 - In Andrew Robertson & Hang Wu Tang (eds.), The Goals of Private Law. Hart.
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  39. added 2014-03-30
    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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  40. added 2014-03-30
    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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  41. added 2014-03-30
    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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  42. added 2014-03-30
    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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  43. added 2014-03-30
    The Goals of Private Law.Andrew Robertson & Hang Wu Tang (eds.) - 2009 - Hart.
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  44. added 2014-03-30
    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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  45. added 2014-03-26
    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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  46. added 2014-03-26
    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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  47. added 2014-03-26
    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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  48. added 2014-03-26
    Rights and Other Things.Robert Stevens - 2012 - In Donal Nolan & Andrew Robertson (eds.), Rights and Private Law. Hart.
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  49. added 2014-03-19
    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 (...)
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  50. added 2014-03-04
    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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