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The Justice Of Private Law, Hanoch Dagan Dagan, Avihay Dorfman
The Justice Of Private Law, Hanoch Dagan Dagan, Avihay Dorfman
Avihay Dorfman
Private law is traditionally conceptualized around a commitment to formal freedom and equality, whereas critics of the public/private distinction (including lawyer-economists) construe it as merely one form of regulation. We criticize the traditional position as conceptually misguided and normatively disappointing. But we also reject the conventional criticism, which confuses a justified rejection of private law libertarianism with a wholesale dismissal of the idea of a private law, thus threatening to deny private law’s inherent value. This Article seeks to break the impasse between these two positions by offering an innovative account of the justice that should, and to some extent …
On Trust And Transubstantiation: Mitigating The Excesses Of Ownership, Avihay Dorfman
On Trust And Transubstantiation: Mitigating The Excesses Of Ownership, Avihay Dorfman
Avihay Dorfman
The legal institution of trust gives rise to two basic sets of question. The first set concerns the respective rights held by the trustee and the beneficiary with respect to the trust property — do these rights feature a structure characteristic of property, contract, or something in between. The second concerns the normative relationship between the trustee and the beneficiary themselves — what explains the existence and content of the obligations owed by the trustee to the beneficiary, especially the fiduciary duty of loyalty, according to which the trustee is expected to act in the sole, rather than merely the …
Private Ownership And The Standing To Say So, Avihay Dorfman
Private Ownership And The Standing To Say So, Avihay Dorfman
Avihay Dorfman
Property theory is an ongoing discourse attempting to articulate a compelling answer (or answers) to the following question: what is the single most significant or otherwise interesting thing about the concept of private ownership? In this article, I seek to advance three general claims in response to this question. First, I criticize certain leading attempts to answer this question. Second, the centerpiece of my article defends the claim that an adequate theory of the concept of private ownership must begin with the special standing that an owner possesses, which is to say the standing to demand that others will take …
Negligence And Accommodation: On Taking Others As They Really Are, Avihay Dorfman
Negligence And Accommodation: On Taking Others As They Really Are, Avihay Dorfman
Avihay Dorfman
Disagreements over the morality and the efficiency of the standard of reasonable care are at the root of the study of negligence law (and, perhaps, tort law as a whole). They typically proceed as though the most important question that needs to be addressed is that of the content of this standard, namely, the question of what reasonable care is. However, in these pages I shall argue that there exists another important question, which is to say the manner in which reasonable care is evaluated. This question, I show, is neither fixed by nor subservient to the content of the …