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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 …
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 …