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Articles 1 - 10 of 10
Full-Text Articles in Law
Foreseeability As Re-Cognition, Avihay Dorfman
Foreseeability As Re-Cognition, Avihay Dorfman
Avihay Dorfman
In these pages, I seek to advance two arguments, a negative and a positive. The negative one is that leading accounts of foreseeability in duty-of-care-analysis fail to make sense of the requirement in question. And affirmatively, I shall argue that the foreseeability requirement reflects a concern for the distinctively social form of interaction between risk-creator and risk-taker, namely, that the former could form a respectful interaction with the latter. This reconstruction of the foreseeability requirement may express the view that its moral center may be a thin form of recognition between members of a liberal society.
New Philosophical Foundations Of Tort Law?, Avihay Dorfman
New Philosophical Foundations Of Tort Law?, Avihay Dorfman
Avihay Dorfman
In this critical piece I take stock of current understandings of five basic distinctions in the theoretical study of tort law: First, a meta-theoretical distinction between the law’s self-presentation and a commitment to epiphenomenalism; second, between the formal and the substantive theory of the morality of tort law; third, between corrective and distributive justice; fourth, between ideal and non-ideal tort theory; and finally, between culpability and justice (or equality).
The Fault Of Trespass, Avihay Dorfman, Assaf Jacob
The Fault Of Trespass, Avihay Dorfman, Assaf Jacob
Avihay Dorfman
The conventional wisdom has it that a property owner assumes virtually no responsibility for guiding others in fulfilling their duties not to trespass on the former's property. In other words, the entire risk of making an unauthorized use of the property in question rests upon the duty-holders. This view is best captured by the Keep-Off picture of property, according to which the content of the duty in question is that of excluding oneself from a thing that is not one's own. In this article, we argue that this view is mistaken. We advance conceptual, normative, and doctrinal arguments to show …
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 …
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 …
Assumption Of Risk, After All, Avihay Dorfman
Assumption Of Risk, After All, Avihay Dorfman
Avihay Dorfman
Assumption of risk — the notion that one cannot complain about the harmful state to which one has willingly exposed oneself — figures prominently in our extra-legal lived experience. In spite of its deep roots in our common-sense morality, the tort doctrine of assumption of risk has long been discredited by many leading tort scholars, restatement reporters, courts, and legislatures. In recent years, however, growing concerns about junk food consumption, and obesity more generally, have given rise to considerations that are traditionally associated with the principles underlying the doctrine of assumption of risk. Against this backdrop, I shall advance two …
Copyright As Tort, Assaf Jacob, Avihay Dorfman
Copyright As Tort, Assaf Jacob, Avihay Dorfman
Avihay Dorfman
In these pages we seek to integrate two claims. First, we argue that, taken to their logical conclusions, the considerations that support a strict form of protection for tangible property rights do not call for a similar form of protection when applied to the case of copyright. More dramatically, these considerations demand, on pain of glaring inconsistency, a substantially weaker protection for copyright. In pursuing this claim, we show that the form of protecting property rights (including rights in tangibles) is, to an important extent, a feature of certain normal, though contingent, facts about the human world. Second, the normative …
Reasonable Care: Equality As Objectivity, Avihay Dorfman
Reasonable Care: Equality As Objectivity, Avihay Dorfman
Avihay Dorfman
The most compelling defense of the standard of reasonable care in negligence law casts itself in terms of equality. This commitment to equality may paradoxically turn out to be flatly inegalitarian. This is because it discriminates against the less capable through ignoring their deficient capabilities (and so against their chances of meeting the standard of reasonable care successfully). A promising, though still unfamiliar, way to revive the egalitarian aspirations of reasonable care would be to show that imposing the standard of reasonable care even on the less competent expresses, rather than inhibits, a true devotion to equality. I seek to …
What Is The Point Of The Tort Remedy?, Avihay Dorfman
What Is The Point Of The Tort Remedy?, Avihay Dorfman
Avihay Dorfman
A tort remedy, as the conventional wisdom has it, might serve any number of masters (ranging from justice to economic efficiency) by vindicating the status quo ante the tort. I shall argue that this view forces one to accept the proposition that the duty to restore the victim to the status quo ante the wrong done her represents a contingency – that is, one among different permissible extensions of the core of the remedial regime animating tort law. Anything outside the core of the remedial regime of tort law, which is the victim’s entitlement to have her rights vindicated by …
Can Tort Law Be Moral?, Avihay Dorfman
Can Tort Law Be Moral?, Avihay Dorfman
Avihay Dorfman
According to the established orthodoxy, the law of private wrongs—especially common law torts—fails to map onto our moral universe. Four objections in particular have caught the imagination of skeptics about the moral foundations of tort law: They purport to cast doubt over the moral appeal of the duty of care element; they target the seemingly inegalitarian objective standard of care; they object to the morally arbitrary elements of factual causation and harm; and they complain about the unnecessary extension of liability under the guise of the proximate cause element. Analyzing these four prevailing arguments concerning the a-moral (and, with regard …