Private Law

This Article contrasts two views of the relationship between the fields of work law and private law. The “internal” view, propounded by Hanoch Dagan, would bring work law into the domain of private law by recentering the latter, including property law, around liberal values of reciprocal respect for autonomy. The “external” view locates the law of work in an overlapping but distinct domain that we might call “social law,” where it operates as a set of externally imposed conditions on the (...) activity of employing others. When workers’ rights and interests come into conflict with those of owner-employers, the two views face off on the constitutional terrain of takings. In principle, the internal view might afford a better defense against takings challenges to laws that constrain property owners’ entitlements in the interest of those who work there, for it would redefine the former to reflect the latter. The external view relies more on takings law than property law to accommodate others’ interests when they conflict with traditional property rights. Unfortunately, the U.S. Supreme Court’s recent decision in Cedar Point Nurseries v. Hassid deals a heavy blow to both views. Its neo-Blackstonian conception of property rights rejects the notion that property law itself recognizes workers’ interests and entrenches that conception of property rights within the constitutional law of takings, sharpening the takings sword against social law’s regulation of property rights in the interest of others, including workers. Cedar Point thus underscores and magnifies the challenges that modern U.S. takings law, with its constitutional definition of property rights, poses to the advancement of workers’ rights, whether those are understood as internal or external to property law. (shrink)

This Article uses a history of the push for job security in the United States during the late 20th century to assess New Private Law (NPL) theory. The history recounts the rise and fall of common law and statutory approaches to replacing at-will employment with termination for just cause only. Applying NPL theory to that history, the Article argues that NPL theorists’ current approach to defining their topic of study and distinguishing it from public law is inconsistent within and across (...) theories. NPL theorists seek to carve out an area of law where interpersonal morality trumps legal economists’ goal of collective welfare maximization. That conceptual project depends on a coherent and consistent approach to distinguishing private from public law. Ultimately, the Article argues, NPL theorists face a more fundamental problem, however. Regardless of how one categorizes the events in this history, it shows that the common law-derived interpersonal morality at the heart of NPL theory may not strengthen worker protections in the ways at least some of its theorists hope. (shrink)

In an ideal democracy, people from all walks of life would come together to talk meaningfully and respectfully about politics. But we do not live in an ideal democracy. In contemporary democracies, which are marked by deep social divisions, different groups for the most part avoid talking to each other. And when they do talk to each other, their speech often seems to be little more than a vehicle for rage, hatred, and deception. -/- Democratic Speech in Divided Times argues (...) that we should nevertheless not give up on the ideal of democratic public speech. Drawing on the resources of political theory, epistemology, and philosophy of language, this book develops a sustained account of the norms that should govern public discourse in deeply divided circumstances. Should we try to find common ground when we talk to our political opponents, even though they seem unreasonable? Should we refrain from expressing anger, if we want to get things done? How can we use our speech to fight hate speech and disinformation? And is it even possible to speak to 'the other side,' in settings where different groups dislike one another, live apart from one another, and don't know much about one another? By tackling these questions, Lepoutre demonstrates that, when governed by the right set of norms, public speech can be a powerful force for good even amidst profound social divisions. (shrink)

This book is a large-scale historical reconstruction of liberal legalism, from its inception in the mid-nineteenth century, the moment in which the jurists forged the alliance between political liberalism and legal expertise embodied in classical private law doctrine, to the contemporary anxiety about the possibility of both a liberal solution to the problem of political justification and of law as a respectable form of expert knowledge. Each stage in the history is a moment of synthesis between a substantive and a (...) methodological idea. The former is the liberal political theory of the period, purporting to provide a solution to the problem of political justification. The latter is a conception of legal method or science, supposedly vindicating the access of the expert to the political choices embodied in the law. Thus, each moment in the history of liberal legalism integrates a political theory with a jurisprudential conception. Although it reaches the unsettling conclusion that liberal legalism has largely failed by its own standards, the book urges us to avoid quietism, skepticism or cynicism, in the hope that a deeper understanding of the fragility of our values and institutions inspires a more thoughtful, broadminded and nurtured citizenship. (shrink)

Contemplating the nature, practice and study of private law, this comprehensive book offers a detailed overview of private law's theoretical dimensions. It promotes a reflective attitude towards the topic, encouraging the reader to question how private law is practiced and studied, what this implies for their own engagement in the field and what kind of private lawyer they want to be. Marc Loth explores the central notion that private law is a multi-layered system which can only be fully apprehended in (...) context. This thought-provoking book draws on examples from a range of legal systems to provide philosophical perspectives on the diverse dimensions of private law. Chapters examine the concept, history, language, values, methods and discipline of private law, as well as legal professionalism and the expertise of the private lawyer. Private Law in Context will be a key resource for scholars and postgraduate students interested in legal theory, legal philosophy, law and society and the nature of private law as a system and a practice. (shrink)

The division of the entire system of law into public law and private law comes from ancient times, which we have referred to in several previous personal publications. In this article we will analyze the evolution of private law in the Republic of Moldova. Private law constitutes one of the fundamental subdivisions of the science of law as a whole. At the level of the Republic of Moldova, the subdivision in question represents a distinct specific in the context that: (i) (...) it is stratified into numerous branches of law and (ii) it constitutes a symbiosis of several national, supranational and international private legislations that correspond to modern trends of evolution of related social relations. One of the main branches of domestic private law is civil law, namely the rules tangent to the branch of law in question regulate a considerable number of social relations varied in terms of structure and content. This article will briefly address evolutionary-historical aspects of the private law legislation of the Republic of Moldova. In particular, we will analyze the influence of the Model Civil Code of the CIS States, on the one hand, and European legislation, on the other. Historical aspects will be divided into three periods. (shrink)

This article argues that the disjunctive obligation in contract law can be justified on moral grounds. It argues that from a perspective that regards human beings as free agents capable of choice and therefore independent of material objects, the contracting parties must be understood as agreeing to mutually guarantee one another's ownership of a certain value. This guarantee can be fulfilled either by handing over what was promised or by making up the difference between the market value and the contract (...) value of what was promised. The plaintiff's contractual right is therefore a right that the defendant perform or pay. This makes expectation damages intelligible as a vindication of the plaintiff's contractual right. Moreover, the disjunctive obligation can be reconciled with all the doctrines that others take to be decisive arguments against it—with the doctrines of specific performance, inducing breach, impossibility, preexisting duty consideration, and nominal damages. (shrink)

Introduction -- Property -- Contracts -- Torts.

This book draws upon domestication science to undertake a radical reappraisal of the jurisprudence of property and intellectual property. Bringing together animal studies and legal philosophy, it articulates a critique of dominant property models and relationships from the perspective of cognitive ethology, domestication science and animal behaviour. In doing so, a radical new picture of property emerges. Focusing on the emergence of property models through prevailing ideas of human domestication and settlement, the book challenges the anthropocentrism that informs standard approaches (...) to ownership and to authorship. Utilising a wide range of examples from ethology and animal studies, the book thus rethinks the very nature of property as uniquely human. This highly original contribution to the fields of property and intellectual property will appeal not only to legal scholars in these areas, as well as in animal law, but also to legal theorists and others working in the social sciences with interests in posthumanism and animal studies. (shrink)

Mainz and Uhrenfeldt have recently claimed that a violation of the right to privacy can be defined successfully under reliance on the notion of ‘Negative Control’. In this reply, I show that ‘Negative Control’ is unrelated to privacy right violations. It follows that control theorists have yet to put forth a successful normative account of privacy.

Judges and juries often make factual decisions even if the facts are disputed and there is no clear-cut evidence available. Despite this common state of uncertainty, verdicts are thought of as having clear winners and losers––either the plaintiff wins and receives a full remedy, or the defendant wins and the plaintiff gets nothing. In private disputes, factfinders base their binary factual determinations on the preponderance of the evidence. There are, however, several doctrines that allow for partial remedy, discounted by the (...) probability that the facts support the plaintiff’s case, given the available evidence (proportional liability). This Article offers a general theory for proportional liability in private law. It identifies three types of factual uncertainty—mutual uncertainty, unilateral uncertainty, and institutional uncertainty—and shows that legal economists should support proportional liability when the state of uncertainty is shared by the parties and the court (mutual uncertainty), and they should adopt an all-or-nothing rule whenever the information is observable but unverifiable (institutional uncertainty). In cases where one party holds private information (unilateral uncertainty), proportional liability is sometimes, but not always, superior to an all-or-nothing rule. (shrink)

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 (...) be revised by incorporating capabilities. I argue this revision can be undertaken in a way that best develops the relevance of political liberalism. (shrink)

The Kantian theory of private law, as Ernest Weinrib and Arthur Ripstein have developed it over the last two decades, is based on a fundamental normative truth, viz., no person is subordinate or superior to another person. Kantians construe any attempt to understand and justify the distribution of the rights-claims and rights-liberties that constitute private law in terms of aggregate welfare and/or distributive justice, as a deep category mistake. This essay outlines a ‘semi-Kantian’ theory of private law, which is like (...) Kant’s in that it understands private law as a means of instituting and protecting private freedom. Yet, semi-Kantians insist that the choice between different private law programs, which respect private freedom equally well, can at times be justified by considerations of aggregate welfare and distributive justice, as well as other considerations that concern the impact on society as a whole. (shrink)

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.

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 (...) expression and enforcement of norms of justice appropriate to interpersonal interaction and association. Others, sounding notes of caution or criticism, argue that a preoccupation with wrongs and remedies has meant neglect of other ways in which private law serves justice, and ways in which private law serves values other than justice. This volume comprises original papers written by a wide variety of legal theorists and philosophers exploring the nature of civil wrongs, their place in private law, and their relationship to other forms of wrongdoing. (shrink)

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 (...) chains and human rights. Both colonial law and human rights can be understood as serving a constitutionalizing function aimed at stabiliz- ing and facilitating connectivity. This allows for an understanding of colonialism and contemporary global governance as functional, but not as normative, equivalents. (shrink)

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” (...) laws and attempts to restrict public support for immigrants define targeted groups as “outsiders,” people who do not belong in America. The acceptance of anti-sodomy laws brands homosexuals as deviant And the slow, grudging history of legal recognition of sexual harassment, the defeat of the Equal Rights Amendment, and the persistence of the “reasonable man” standard effaces the distinctive experiences of women in society while subjecting all to measurement against a male norm. (shrink)

In European law, "non-contractual liability arising out of damage caused to another" is one of the three main non-contractual obligations dealt with in the Draft of a Common Frame of Reference. The law of non-contractual liability arising out of damage caused to another â?? in the common law known as tort law or the law of torts, but in most other jurisdictions referred to as the law of delict â?? is the area of law which determines whether one who has (...) suffered a damage, can on that account demand reparation â?? in money or in kind â?? from another with whom there may be no other legal connection than the causation of damage itself. Besides determining the scope and extent of responsibility for dangers of one's own or another's creation, this field of law serves to protect fundamental rights in the private law domain, that is to say horizontally between citizens inter se. Based on pan-European comparative research which annotates the work, this book presents model rules on liability. Explanatory comments and illustrations amplify the policy decisions involved. During the drafting process, comparative material from over 25 different EU jurisdictions has been taken into account. The work therefore is not only a presentation of a future model for European rules to come, but also provides a fairly detailed indication of the present legal situation in the Member States. (shrink)

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 (...) Marx and Engels. The selft-eliminating process of selection which takes place within “civilized” societies, is calles by P. Tort the reversive effect of evolution. The method used in this work -the analysis of discursive complexes- should make is possible, through its later developments, to resolve, notedly in matters of classification, a certain numbers of key problems that have been raised by the traditional or estructuralist approaches to the “history of ideas”. (shrink)

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 (...) on a nonliable person. In the final part of the paper, I provide a second, independent, argument in support of the proposition that there are agent-relative permissions to foreseeably harm or kill nonliable people under certain conditions. (shrink)

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 (...) to lose sight of the ways “moral luck” is an inescapable feature of our agential engagement in the world. The present essay attempts to set out Raz’s argument as sympathetically as possible. Raz’s shift of focus is a powerful counter to current tendencies and points us in new and promising directions. Nonetheless, as it stands, it may just relocate skepticism about negligence to a different place. (shrink)

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 (...) which evaluates sociological and psychological stances in relation to justice distributive and procedural. All the material is of clear cross-disciplinary interest; and this broad and authoritative survey of thinking on the topic will appeal to all researchers in the area, whatever their background, as well as to those confronting issues of justice in law politics and business. (shrink)

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 (...) but regard the process of agreement as reliable evidence that contracts are welfare-improving. This article demonstrates the limitations of pure and perfect views. It favours instead imperfect theories of contract, which would have judges self-consciously pursue the normative ends of contract law as they apply context-sensitive rules. (shrink)

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 (...) overdrawn. I argue that it does not succeed in identifying private law’s precise nature. (shrink)