Reconstructing American Legal Realism Rethinking Private Law Theory

Author: Hanoch Dagan
Publisher: Oxford University Press
ISBN: 0199890692
Format: PDF, ePub, Docs
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This book demonstrates how legal realism offers important and unique jurisprudential insights that are not just a part of legal history, but are also relevant and useful for a contemporary understanding of legal theory.

Private Law and the Rule of Law

Author: Lisa M Austin
Publisher: OUP Oxford
ISBN: 0191045578
Format: PDF
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The rule of law is widely perceived to be a public law doctrine, concerned with the way in which governmental authority conforms to the dictates of law. The goal of this book is to challenge this presumption. The chapters in this volume all consider the idea that the rule of law concerns the nature of law generally and the conditions under which any relationship - that among citizens as well as that between citizens and the state - becomes subject to law. Addressing two major questions, they ask if our understanding of the rule of law is enriched by considering how and to what degree it is expressed or realized in private law, and whether our understanding of the private law is enriched by adding the principles of the rule of law to the traditional list of core private law concepts. Bringing together leading philosophers of private and public law, this volume examines key questions in a little-explored field, and will be essential reading for all those interested in the rule of law and in private law theory.

Philosophical Foundations of Fiduciary Law

Author: Andrew S. Gold
Publisher: OUP Oxford
ISBN: 0191005290
Format: PDF
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Fiduciary law is a critically important body of law. Fiduciary duties ensure the integrity of a remarkable variety of relationships, institutions, and organizations. They apply to relationships of great personal significance, including in some jurisdictions the relationship between parents and children. They structure a wide variety of commercial relationships, and they are essential to the regulation of relationships between professional service providers and their clients, including relationships between lawyer and client, doctor and patient, and investment manager and client. Fiduciary duties, perhaps uniquely in private law, challenge traditional ways of marking the boundaries between private and public law, inasmuch as they figure prominently in public governance. Indeed, there is even a storied tradition of thinking of the authority of the state in fiduciary terms. Notwithstanding its importance, fiduciary law has been woefully under-analysed by legal theorists. Filling this gap with a series of chapters by leading theorists, this book includes chapters on: the nature of fiduciary relationships, the connection between fiduciary duties and morality, the content and significance of fiduciary loyalty, the economic significance of fiduciary law, the application of fiduciary principles to public law and international law, the import of fiduciary relationships to theories of authority, and various other fundamental topics in the field. In many cases, new and important questions are raised by the book's chapters. Indeed, this book not only offers a much-needed theoretical assessment of fiduciary topics, it defines the field going forward, setting an agenda for future philosophical study of fiduciary law.

The Choice Theory of Contracts

Author: Hanoch Dagan
Publisher: Cambridge University Press
ISBN: 1107135982
Format: PDF, ePub, Docs
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The Choice Theory of Contracts is an engaging landmark that shows, for the first time, how freedom matters to contract.

The Unity of the Common Law

Author: Alan Brudner
Publisher: OUP Oxford
ISBN: 0191002550
Format: PDF, Kindle
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In this classic study, Alan Brudner investigates the basic structure of the common law of transactions. For decades, that structure has been the subject of intense debate between formalists, who say that transactional law is a private law for interacting parties, and functionalists, who say that it is a public law serving the collective ends of society. Against both camps, Brudner proposes a unity of formalism and functionalism in which private law is modified by a common good without being subservient to it. Drawing on Hegel's legal philosophy, the author exhibits this unity in each of transactional law's main divisions: property, contract, unjust enrichment, and tort. Each is a whole composed of private-law and public-law parts that complement each other, and the idea connecting the parts to each other is also latently present in each. Moreover, Brudner argues, a single narrative thread connects the divisions of transactional law to each other. Not a row of disconnected fields, transactional law is rather a story about the realization in law of the agent's claim to be a dignified end-master of its body, its acquisitions, and the shape of its life. Transactional law's divisions are stages in the progress toward that goal, each generating a potential developed by the next. Thus, contract law fulfils what is incompletely realized in property law, negligence law what is germinal in contract law, public insurance what is seminal in negligence law, and transactional law as a whole what is underdeveloped in public insurance. The end-point is the limit of what a transactional law can contribute to a life sufficient for dignity. Reconfigured and expanded with a contribution by Jennifer Nadler, The Unity of the Common Law stands out among contemporary theories of private law in that it depicts private law as purposive without being instrumental and as autonomous without being emptily formal.

Property

Author: Hanoch Dagan
Publisher: Oxford University Press
ISBN: 0199876320
Format: PDF
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Property: Values and Institutions, by Hanoch Dagan, offers an original understanding of property, different from the dominant voices in the field, yet loyal to the practice of property. It rejects the misleading dominant binarism in which property is either one monistic form, structured around Blackstone's (in)famous formula of sole and despotic dominion, or a formless bundle of rights. Instead, it conceptualizes property as an umbrella for a set of institutions bearing a mutual family resemblance. It resists the prevailing tendency to discuss property through the prism of only one particular value, notably efficiency. Dagan argues that property can, and should, serve a pluralistic set of liberal values. These property values include not only autonomy and utility, which are emphasized by many contemporary scholars, but also labor, personhood, community, and distributive justice. Dagan claims that property law, at least at its best, tailors different configurations of entitlements to different property institutions, with each such institution designed to match the specific balance between property values best suited to its characteristic social setting. Dagan develops this theoretical account and applies it to key doctrinal contexts. In particular, he analyzes the normative underpinnings of the doctrines regulating the interactions between landowners and governments (both eminent domain and regulatory takings doctrines) and those regulating the governance of property owned by multiple owners (such as co-ownership, marital property, and the law of common interest communities).

The Critical Legal Studies Movement

Author: Roberto Mangabeira Unger
Publisher: Verso Books
ISBN: 1781683417
Format: PDF, Mobi
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Critical legal studies is the most important development in progressive thinking about law of the past half century. It has inspired the practice of legal analysis as institutional imagination, exploring, with the materials of the law, alternatives for society. The Critical Legal Studies Movement was written as the manifesto of the movement by its central figure. This new edition includes a revised version of the original text, preceded by an extended essay in which its author discusses what is happening now and what should happen next in legal thought. From the Trade Paperback edition.

Private Wrongs

Author: Arthur Ripstein
Publisher: Harvard University Press
ISBN: 0674659805
Format: PDF, ePub
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Tort law recognizes the many ways one person wrongs another. Arthur Ripstein brings coherence to torts’ diversity in a philosophically grounded, analytically powerful theory. He shows that all torts violate the basic moral idea that each person is in charge of his or her own person and property, and never in charge of another’s person or property.

Key Ideas in Contract Law

Author: Nicholas McBride
Publisher: Bloomsbury Publishing
ISBN: 150990722X
Format: PDF, Docs
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This book introduces the reader to a number of ideas and issues that underlie the English law of contract-an area of law that is often regarded as forbiddingly dry and technical but which is here made easy to understand and full of interest. Taking as its starting point the role contract law plays in helping markets to operate, the book explains how contract law regulates the commercial risks people take, while at the same time placing limits on what may be bought and sold, and ensuring that contractual powers are not unacceptably abused. A final chapter discusses how contract law can be used to make gifts of binding promises to other people. The book provides a rigorous and stimulating journey through the ideas underpinning contract law and is essential reading for anyone with an interest in the subject. 'Clearly written and bursting with interesting and novel ideas, this lively book will be a great resource for anyone interested in Contract Law.' Paul S Davies, Professor of Commercial Law, University College London