Law Commons^™

Private Law In The Gaps, Jeffrey A. Pojanowski

Jeffrey A. Pojanowski

Private law subjects like tort, contract, and property are traditionally taken to be at the core of the common law tradition, yet statutes increasingly intersect with these bodies of doctrine. This Article draws on recent work in private law theory and statutory interpretation to consider afresh what courts should do with private law in statutory gaps. In particular, it focuses on statutes touching on tort law, a field at the leading edge of private law theory. This Article's analysis unsettles some conventional wisdom about the intersection of private law and statutes. Many leading tort scholars and jurists embrace a regulatory …

Dualism And Doctrine, Alex Stein, Dov Fox

Alex Stein

What kinds of harm among those that tortfeasors inflict are worthy of compensation? Which forms of self-incriminating evidence are privileged against government compulsion? What sorts of facts constitute a criminal defendant’s intent? Existing doctrine pins the answer to all of these questions on whether the injury, facts, or evidence at stake are “mental” or “physical.” The assumption that operations of the mind are meaningfully distinct from those of the body animates fundamental rules in our law.

A tort victim cannot recover for mental harm on its own because the law presumes that he is able to unfeel any suffering arising …

Catalogs, Alex Stein, Gideon Parchomovsky

Alex Stein

It is a virtual axiom in the world of law that legal norms come in two prototypes: rules and standards. The accepted lore suggests that rules should be formulated to regulate recurrent and frequent behaviors, whose contours can be defined with sufficient precision. Standards, by contrast, should be employed to address complex, variegated, behaviors that require the weighing of multiple variables. Rules rely on an ex ante perspective and are therefore considered the domain of the legislator; standards embody a preference for ex post, ad-hoc, analysis and are therefore considered the domain of courts. The rules/standards dichotomy has become a …

Bubbles (Or, Some Reflections On The Basic Laws Of Human Relations), Donald J. Kochan

Donald J. Kochan

What Is An Accident?, Daniel B. Yeager

Daniel B. Yeager

Please consider for publication my attached 5000-word, 28-page, lightly annotated (39 footnotes) Essay, entitled “What Is an Accident?”

Here I attempt to decode the most frequently proferred excuse in and out of law. Surprisingly, as central as accidents are to questions of responsibility, their criteria have received almost no attention at all. From what I can tell, mine is the first sustained attempt to identify the grammar of accidents, an endeavor that follows up on similar efforts to do the same with the excuse of mistake in my book J.L. Austin and the Law: Exculpation and the Explication of Responsibility …

Constructing Autonomy: A Kantian Framework, Bailey H. Kuklin

Bailey H. Kuklin

No abstract provided.

The Property Platform In Anglo-American Law And The Primacy Of The Property Concept, Donald J. Kochan

Donald J. Kochan

This Article proposes that the property concept, when reduced to its basic principles, is a foundational element and a useful lens for evaluating and understanding the whole of Anglo-American private law even though the discrete disciplines—property, tort, and contract—have their own separate and distinct existence. In this Article, a broad property concept is not focused just on things or on sticks related to things but instead is defined as relating to all things owned. These things may include one’s self and all the key elements associated with this broader set of things owned—including the right to exclude, ownership, dominion, authority, …

Remedies For Breach Of An Obligation: A Look At The Remedies' Section Of The New Israeli Civil Code, Dr. Yehuda Adar, Prof. Gabriela Shalev

Yehuda Adar Dr.

-This article is in Hebrew-

The remedies section in the new Israeli draft civil code is an endeavor to create a unified law of remedies, applicable to all branches of civil and commercial law, including torts and breach of contract. This article explores the main innovations included in the remedies section. It opens with a short overview of the status of the law of remedies in modern times, and the debate over the justification for unifying it. Then, in the remainder of the article, the authors examine the various changes, in terms of both structure and substance, reflected in the …

Boyakasha, Fist To Fist: Respect And The Philosophical Link With Reciprocity In International Law And Human Rights, Donald J. Kochan

Donald J. Kochan