Private Law

Edited by Ori Herstein (King's College London, Hebrew University of Jerusalem)
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  1. Justice in Contracts.Hanoch Dagan & Avihay Dorfman - forthcoming - American Journal of Jurisprudence.
    The mission of justice for contracts seems to be solely one of gatekeeping. As long as the justice of the bargaining stage is secured and the parties’ agreement complies with a proper floor of legitimacy, contract law, on this conventional approach, must simply follow the parties’ preferences. Doctrines that govern contractual performance and breach by appealing to justice considerations are thus portrayed as either confused or misguided. The justice rhetoric either covers for other, notably economic, considerations or undermines contract law’s (...)
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  2. Freedom From Things: A Defense of the Disjunctive Obligation in Contract Law.Jennifer Nadler - 2021 - Legal Theory 27 (3):177-206.
    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 (...)
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  3. Christianity and Private Law.Robert F. Cochran & Michael P. Moreland - 2020 - Routledge.
    Introduction -- Property -- Contracts -- Torts.
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  4. Owned, an Ethological Jurisprudence of Property: From the Cave to the Commons.Johanna Gibson - 2019 - Routledge.
    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 (...)
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  5. The Temptation of Cosmic Private Law Theory.Nathan B. Oman - 2022 - American Journal of Jurisprudence 66 (2):395-408.
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  6. The New Formalism in Private Law.Paul B. Miller - 2022 - American Journal of Jurisprudence 66 (2):175-238.
    : Private law scholarship is experiencing a reawakening in the United States with the rise of the New Private Law. New Private Lawyers have emphasized our common commitment to the scholarly interest and practical importance held by legal concepts; a belief that private law ought to be analyzed from an internal point of view; and a conviction that functionalist and conceptual analyses of private law doctrines, procedures and institutions are, or can be, complementary. We are also joined in criticism of (...)
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  7. All-or-Nothing, or Something – Proportional Liability in Private Law.Omer Y. Pelled - 2021 - Theoretical Inquiries in Law 22 (1):159-199.
    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 (...)
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  8. Capabilities, Political Liberalism and Private Law.Thom Brooks - 2018 - Archiv für Rechts- Und Sozialphilosophie 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 (...)
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  9. Philosophy of Private Law.Benjamin Zipursky - 2002 - In Jules Coleman & Scott J. Shapiro (eds.), The Oxford Handbook of Jurisprudence and Philosophy of Law. Oxford University Press.
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  10. Welfare and Freedom: Towards a Semi-Kantian Theory of Private Law.Yitzhak Benbaji - 2020 - Law and Philosophy 39 (5):473-501.
    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 (...)
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  11. Markets, Rights, and Discrimination by Customers.Heather Whitney - 2016 - Iowa Law Review 1 (102).
    This essay is designed to do two things: -/- First, review and critique Katharine Bartlett and Mitu Gulati's Discrimination by Customers, 102 Iowa L. Rev. 223 (2016). -/- Second, stand alone as a piece that more generally evaluates (1) efficacy and (2) autonomy- and constitutional-based objections to the regulation (both in direct and indirect form) of customer discrimination.
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  12. It's Something Personal: On the Relationality of Duty and Civil Wrongs.John Oberdiek - 2020 - In John Oberdiek & Paul Miller (eds.), Civil Wrongs and Justice in Private Law. New York, NY, USA:
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  13. Civil Wrongs and Justice in Private Law.John Oberdiek & Paul Miller (eds.) - 2020 - New York, NY, USA: Oxford University Press.
    Civil wrongs occupy a significant place in private law. They are particularly prominent in tort law, but equally have a place in contract law, property and intellectual property law, unjust enrichment, fiduciary law, and in equity more broadly. Civil wrongs are also a preoccupation of leading general theories of private law, including corrective justice and civil recourse theories. According to these and other theories, the centrality of civil wrongs to civil liability shows that private law is fundamentally concerned with the (...)
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  14. Constitutionalizing Connectivity: The Constitutional Grid of World Society.Poul F. Kjaer - 2018 - Journal of Law and Society 45 (S1):114-34.
    Global law settings are characterized by a structural pre-eminence of connectivity norms, a type of norm which differs from coherency or possibility norms. The centrality of connectivity norms emerges from the function of global law, which is to increase the probability of transfers of condensed social components, such as economic capital and products, religious doctrines, and scientific knowledge, from one legally structured context to another within world society. This was the case from colonialism and colonial law to contemporary global supply (...)
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  15. Enslaving the Image: The Origins of the Tort of Appropriation of Identity Reconsidered: Jonathan Kahn.Jonathan Kahn - 1996 - Legal Theory 2 (4):301-324.
    There is no escaping the fact that law shapes identity. Laws tells us who we are and where we stand in society. While sometimes benign, such classification can also be a devastatingly powerful instrument of ostracism and subjugation. Legally enforced racial segregation sent a cold and harsh message about what the dominant society thought it meant to be black. The recent backlash against affirmative action resurrects degrading stereotypes and sends old messages wrapped in new code words about racial identity. “English-only” (...)
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  16. Grounds of Liability: An Introduction to the Philosophy of Law. Alan R. White.J. H. Bogart - 1987 - Ethics 97 (3):673-674.
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  17. Les Concepts Souffrent-Ils de Négligence Bénigne En Sciences Sociales? Eléments D’Analyse Conceptuelle Et Examen Exploratoire de la Littérature Francophone À Caractère Méthodologique.Pierre-Marc Daigneault & Steve Jacob - 2012 - Social Science Information 51 (2):188-204.
    Concepts are essential to any scientific endeavour aimed at ‘discovering’ the nature of ‘reality’. Yet, concepts and their analysis have received scant attention from scholars as objects worth studying and teaching in and of themselves, especially in comparison to data collection and analysis techniques. When scholars venture into analyzing concepts, they generally proceed informally, thereby raising serious concerns in terms of the validity of their findings. Conceptual analysis seems to be unrecognized and even unappreciated. This article aims to mitigate this (...)
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  18. Singapore. The Effect of Contract on the Law Governing Claims in Torts and Equity.Andrea Bonomi & Paul Volken - 2009 - In Andrea Bonomi & Paul Volken (eds.), Yearbook of Private International Law: Volume Ix. Sellier de Gruyter.
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  19. Contract Law or Law of Obligations? – The Draft Common Frame of Reference as a Multifunction Tool.Reiner Schulze - 2009 - In Common Frame of Reference and Existing Ec Contract Law. Sellier de Gruyter.
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  20. Part One: Non-Contractual Liability and Contract Law.Ulrich Drobnig & Christian von Bar - 2009 - In Ulrich Drobnig & Christian von Bar (eds.), The Interaction of Contract Law and Tort and Property Law in Europe: A Comparative Study. Sellier de Gruyter.
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  21. Non-Contractual Liability Arising Out of Damage Caused to Another.Christian von Bar - 2006 - Sellier de Gruyter.
    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 (...)
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  22. § 13. Damages.Alastair Mullis & Peter Huber - 2009 - In Alastair Mullis & Peter Huber (eds.), The Cisg: A New Textbook for Students and Practitioners. Sellier de Gruyter.
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  23. Contract Remedies From the Incentive Perspective.Gerhard Wagner - 2009 - In The Common Frame of Reference: A View From Law & Economics. Sellier de Gruyter.
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  24. The Remedies for Non-Performance in the Proposed Consumer Rights Directive and the Europeanisation of Private Law.Reiner Schulze & Geraint Howells - 2009 - In Reiner Schulze & Geraint Howells (eds.), Modernising and Harmonising Consumer Contract Law. Sellier de Gruyter.
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  25. Introducción a la antropología darwiniana.Patrick Tort - 1988 - Theoria: Revista de Teoría, Historia y Fundamentos de la Ciencia 4 (1):31-54.
    Patrick Tort, An lntroduction to Darwininian Anthopology. An lnterview with Georges Guille-Escuret. - Recalling how his book La pensée hiérarchique et l’evolution had, in 1983, reoriented the field of the interpretation of Darwinism, P. Tort contrasts “social Darwinism”- which was wrongly thought to be its consequence -with the very different truth represented by the anthropology of Darwin, which opens new perspectives for reflexion on the nature/culture and nature/society relationships. For over a century, this truth was not perceived, not even by (...)
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  26. Agent-Relative Prerogatives to Do Harm.Jonathan Quong - 2016 - Criminal Law and Philosophy 10 (4):815-829.
    In this paper, I offer two arguments in support of the proposition that there are sometimes agent-relative prerogatives to impose harm on nonliable persons. The first argument begins with a famous case where most people intuitively agree it is permissible to perform an act that results in an innocent person’s death, and where there is no liability-based or consequentialist justification for acting. I show that this case is relevantly analogous to a case involving the intentional imposition of lethal defensive harm (...)
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  27. Public Rights, Private Relations.Mark Tushnet - 2016 - Jurisprudence 7 (2):355-364.
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  28. Raz on Responsibility.Gary Watson - 2016 - Criminal Law and Philosophy 10 (3):395-409.
    Standard treatments of responsibility have been preoccupied with issues of blame and punishment, and concerns about free will. In contrast, Raz is concerned with problems about responsibility that arise from the “puzzle of moral luck,” puzzles that lead to misguided skepticism about negligence. We are responsible not only for conduct that is successfully guided by what we take to be our reasons for action, but also for misexercises of our rational capacities that escape our rational control. To deny this is (...)
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  29. Justice: Interdisciplinary Perspectives.Klaus R. Scherer (ed.) - 1992 - Cambridge University Press.
    In this book, which was originally published in 1992, Klaus Scherer brought together leading scholars from the social sciences to discuss theoretical and empirical studies of justice. They examined the nature of justice from the perspective of philosophy, economics, law, sociology and psychology, and explored possible lines of convergence. A critical examination of theories of justice from Plato and Aristotle, through Marx, to Rawls and Habermas heads a collection which addresses the role of justice in economics and the law and (...)
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  30. The Ethics of Breach of Contract.F. C. Sharp - 1934 - International Journal of Ethics 45 (1):27-53.
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  31. The Functional View of Legal Liability.Maurice Finkelstein - 1924 - International Journal of Ethics 34 (3):243-253.
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  32. The Philosophical Foundations of Environmental Law.Darrell Whitman - 2005 - Contemporary Political Theory 4 (3):338-340.
  33. Antitrust and the Making of European Tort Law.Niamh Dunne - 2016 - Oxford Journal of Legal Studies 36 (2):366-399.
    Efforts to develop a robust competition culture within the European Union, premised upon private enforcement of the EU competition rules, have gathered pace in recent years. This article examines the manner in which judicial innovation, coupled with legislative reinforcement, has rendered this area of primary importance in terms of the emergence of a distinct European tort law. In doing so, the article considers why this area has been singled out for such extensive vertical harmonisation, addressing this question from a variety (...)
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  34. Contract as Procedural Justice.Aditi Bagchi - 2016 - Jurisprudence 7 (1):47-84.
    The premise of contract law is that the redistribution of entitlements that results from contract is justified by the process of agreement. But theories of contract differ importantly on how and when voluntary exchange justifies a resorting of entitlements. Pure theories regard the principles of contract as essentially derivative from some aspect of the principle of autonomy; contracting parties’ intent to assume legal obligation is in principle necessary and sufficient for its enforcement. Perfect theories do not view contract as self-justifying (...)
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  35. Damages for Breach of Contract: Quantifying the Lost Consumer Surplus.Stephanie Mullen - 2016 - Oxford Journal of Legal Studies 36 (1):83-109.
    This article examines the current approach to the quantification of damages for non-pecuniary loss, and the issues that have arisen therein. Notwithstanding the acceptance by English contract law that certain forms of non-pecuniary loss are compensable, substantial difficulties still arise when attempting to quantify such loss. In particular, the courts have struggled to justify damages in cases that require some measurement of the value of the ‘subjective’ loss to the claimant. One method of measurement is the concept of consumer surplus, (...)
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  36. Private Law Exceptionalism? Part I: A Basic Difficulty with the Structural Arguments From Bipolarity and Civil Recourse.Avihay Dorfman - 2016 - Law and Philosophy 35 (2):165-191.
    Contemporary discussions of private law theory have sought to divine the deep structure and content of private law by reference to two key distinctions. First, the distinction between private and criminal law has been utilized to flesh out the distinctively bipolar structure of private law. Second, the distinction between formal and distributive equality has served to highlight the special terms of interaction established in private law. In these pages, I take up the former distinction, arguing that its theoretical significance is (...)
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  37. ERISA: State Tort Claim for Fraud and Negligent Misrepresentation Survives ERISA Preemption—Shea V. Esensten.Peter J. Van Hemel - 2000 - Journal of Law, Medicine and Ethics 28 (2):190-191.
    The United States Court of Appeals for the Eighth Circuit held that ERISA did not preempt a Minnesota tort claim alleging fraud and negligent misrepresentation against primary-care physicians who failed to disclose their financial incentives to minimize specialist referrals. The original action was filed in state court after the plaintiff's husband died of heart failure, alleging that his family doctors had assured him that referral to a cardiologist was unnecessary. The plaintiff filed a wrongful death suit against the doctors, their (...)
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  38. ‘Losses in Any Event’ in the Case of Damage to Property.Samuel Beswick - 2015 - Oxford Journal of Legal Studies 35 (4):755-775.
    In several relatively recent decisions, the House of Lords and the Court of Appeal have declared, relying on a series of early 20th century admiralty cases, that the occurrence of supervening events is irrelevant to the determination of damages for negligent injury to property. The principle has been described as ‘a firm sub-rule’ that applies to cases of property damage but not to other categories of loss. This paper, conversely, contends that the proper and consistent position in law is that (...)
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  39. Corrective Vs. Distributive Justice: The Case of Apologies.Andrew I. Cohen - 2016 - Ethical Theory and Moral Practice 19 (3):663-677.
    This paper considers the relation of corrective to distributive justice. I discuss the shortfalls of one sort of account that holds these are independent domains of justice. To support a more modest claim that these are sometimes independent domains of justice, I focus instead on the case of apologies. Apologies are sometimes among the measures specified by corrective justice. I argue that the sorts of injustices that apologies can help to correct need not always be departures from ideals specified by (...)
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  40. Hospital Corporate Liability: The Trend Continues.Lee J. Dunn - 1980 - Journal of Law, Medicine and Ethics 8 (5):16-17.
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  41. Failure to Use Siderails: When Is It Negligence?Jane Greenlaw - 1982 - Journal of Law, Medicine and Ethics 10 (3):125-128.
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  42. Will the Tort of Bad Faith Breach of Contract Be Extended to Health Maintenance Organizations?Joanne B. Stern - 1983 - Journal of Law, Medicine and Ethics 11 (1):12-18.
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  43. The Philosophy of Tort Law as a Subfield.James Gordley - 2015 - Jurisprudence 6 (3):624-631.
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  44. Liability and Risk.David Mccarhty - 1996 - Philosophy and Public Affairs 25 (3):238-262.
  45. The Doctrine of Laesio Enormis in Lithuanian Contract Law.Tomas Chochrin & Rūta Lazauskaitė - 2015 - Jurisprudencija: Mokslo darbu žurnalas 21 (4):1163.
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  46. Bank's Liability for Paying Fraudulently Issued Cheques.E. P. Ellinger - 1985 - Oxford Journal of Legal Studies 5 (2):293-300.
  47. Contract Law as Fairness.Josse Klijnsma - 2015 - Ratio Juris 28 (1):68-88.
    This article examines the implications for contract law of Rawls' theory of justice as fairness. It argues that contract law as an institution is part of the basic structure of society and as such subject to the principles of justice. Discussing the basic structure in relation to contract law is particularly interesting because it is instructive for both contract law and Rawlsian theory. On the one hand, justice as fairness has clear normative implications for the institution of contract law. On (...)
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  48. Taking Private Law Seriously: A Review of Ernest J Weinrib, The Idea of Private Law. [REVIEW]Alberto Pino-Emhart - 2014 - Jurisprudence 5 (2):421-429.
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  49. Probabilistic Causation in Efficiency-Based Liability Judgments.Diego M. Papayannis - 2014 - Legal Theory 20 (3):210-252.
    In this paper I argue that economic theories have never been able to provide a coherent explanation of the causation requirement in tort law. The economic characterization of this requirement faces insurmountable difficulties, because discourse on tort liability cannot be reduced to a cost-benefit analysis without a loss of meaning. More seriously, I try to show that by describing causation in economic terms, economic theories offer an image of the practice in which the participants incur in logical contradictions and develop (...)
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  50. Strict Liability and the Mitigation of Moral Luck.Greg Keating - 2006 - Journal of Ethics and Social Philosophy 2 (1):1-34.
    The general problem of moral luck—that responsibility is profoundly affected by factors beyond the control of the person held responsible—is often said to cause special problems for strict liability, as opposed to negligence liability. Negligence, the argument runs, holds people responsible for both fault and fate whereas strict liability holds people accountable solely for fate. This criticism is off the mark, both in its specific claim and in its general implications. The specific criticism is mistaken because the choice between negligence (...)
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