Hybrid journal (It can contain Open Access articles) ISSN (Print) 0065-8995 - ISSN (Online) 2049-6494 Published by Oxford University Press[425 journals]
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Pages: 91 - 104 Abstract: Our common law rejected Roman law’s treatment of contractual and tortious obligations as property, but radicalized property rights by making their object abstract entities such as estates and trusts. By dealing in such entities’ existence or non-existence, and in the validity/fallacy of arguments about them, Property minimizes practical reasoning (about ends, means, the rightful, permitted, wrongful …), for a practical reason—to advance valuable ends such as stability and security and their fruits: prosperity (in principle for all), and independence in face of public power and oligarchical (or indeed democratic) groupthink. Part II illustrates this in a simple Trusts case.Tort, however, is private law-rules/principles for enforcing originally moral obligations to compensate for violating essentially moral but formally conventional and derivatively/technically legal obligations (of respect and care). Part III illustrates Tort’s private-law/moral character in dialectic with Goldberg and Zipursky. Part IV sketches Tort’s relevance to compensating for aspects and consequences of regulators’ failures to exercise morally/conventionally due care in executing public-law duties/powers to regulate makers, distributors or mandators of inherently dangerous medical means. PubDate: Thu, 22 Jun 2023 00:00:00 GMT DOI: 10.1093/ajj/auad011 Issue No:Vol. 68, No. 2 (2023)
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Pages: 105 - 118 Abstract: AbstractCorrective justice theorists tell us that to resort to features or characteristics alien to the internal structure of corrective justice and the law of negligence undermines the intelligibility of the phenomena, i.e., the interaction between the plaintiff and the defendant. Like friendship or love which can only be understood by reasons of love or friendship itself, the doctrinal aspects of negligence law can only be correctly understood and become intelligible within the normativity, internal logic and reasons of corrective justice, i.e., equality between persons, autonomy. Furthermore, law and juridical thinking are a matter of rights and duties. By contrast, ethical deliberation and practical reason are a matter of virtuous action, values and what is good. The first underlying presupposition will be called the “internal logic” thesis. The latter will be called the “the separation of rights and values” thesis.I aim to debunk both theses and argue, first, that we need to grasp the values embedded in the law in our “doing” and in our engagement with the law. This does not mean that these values are external and therefore that we make the internal logic of negligence law unintelligible. I will show that from the forward-looking perspective of the citizen there is no stark separation of rights and values. When engaging in decisions judges attribute liability grounded on the plaintiff’s rights and defendant’s duties, they take the backward-looking standpoint. However, in negligence law, judges advance values that play the role of proleptic thoughts, i.e., descriptions and re-descriptions of values, in the practical reasoning of the citizens. We can understand both functions or roles because we can understand that there is no stark separation of rights/duties and values. Finally, the paper considers whether my position sheds light on the role of moral luck in negligence law. PubDate: Wed, 07 Jun 2023 00:00:00 GMT DOI: 10.1093/ajj/auad010 Issue No:Vol. 68, No. 2 (2023)
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Pages: 119 - 130 Abstract: AbstractThis paper approaches the public-private law problem by describing what it calls “drift.” Drift is the tendency of what is thought traditionally to be private law to become public (public drift), and the tendency of what is thought traditionally to be public law to become private (private drift). Though it is possible to distinguish public and private drift conceptually, drift is in practice a unified phenomenon: public and private drift go together. Drift is manifested not only in formal, legal developments, but also in the informal processes by which public law frameworks now influence private ordering, private rulemaking, and private relationships, as well as the way private authorities have been entrusted with the responsibility to implement those public law frameworks.The paper describes various contemporary examples of drift, explains drift’s comparative ascendancy today, and speculates about possible future developments for drift. Drift in public and private law may not be driven primarily by anything innate or conceptually necessary in the disciplines believed to constitute private or public law. Drift is instead a political byproduct, the issue of social and cultural anxieties concerning the absence of anything like a common political project, anxieties that drive powerful actors toward manufacturing imaginary commonalities that they press with confounding certitude. The powerful exploit and manipulate areas of law that properly pertain to the public and private domains, repurposing them for new uses, because their regular use is ineffective in achieving their political objectives. The paper deliberately selects examples of drift that exhibit what would be conventionally described as conservative and progressive valences (in the meteoric rise of public nuisance, in the strategy of statutes like Texas’ S.B. 8, in the mixed public-private response to COVID-19, in the controversies about social media speech control, and others) to illustrate the universality of the phenomenon. Drift is a response to a perceived political void or emptiness in which public-private partnerships of powerful actors emerge to fill the void, capture the institutions of power, and coerce people’s behavior into certain ideological grooves. PubDate: Thu, 15 Jun 2023 00:00:00 GMT DOI: 10.1093/ajj/auad014 Issue No:Vol. 68, No. 2 (2023)
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Pages: 131 - 140 Abstract: AbstractCorrective justice and civil recourse theorists aim to provide coherent and unified theories of tort law—and private law more generally. In doing so, they have identified relationality as a key unifying concept. For corrective justice theorists, relational rights and wrongs are based on the internal moral structure of private law—namely a notion of rights that protect a person’s capacity to exercise purposive agency. For civil recourse theorists, on the other hand, relational rights and wrongs are grounded in the positive law. This essay assesses whether relationality does, in fact, provide a strong foundation for grounding a theory of tort law. It argues that, while relationality certainly describes aspects of the remedial relationship between right and wrong, it does not generally provide sufficient guidance for understanding what kinds of “relational wrongs” should be redressable by tort in the first instance. PubDate: Wed, 31 May 2023 00:00:00 GMT DOI: 10.1093/ajj/auad007 Issue No:Vol. 68, No. 2 (2023)
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Pages: 141 - 151 Abstract: AbstractRecognizing Wrongs reflects an ongoing challenge within private law theory: once an ideal of interpersonal responsibility and accountability is recognised at private law’s centre, how are these dimensions of private law to be developed in a manner that does not unduly undermine systemic predictability and clarity' This article responds to this challenge from the perspective of property law and theory. It suggests that inspiration as to the kinds of core unifying values that could clarify private law’s obligational dimensions can be found in varied sources, including in Thomistic property thinking, with opportunities for identifying and developing interpersonal responsibilities already existing in property doctrine, for example in the law of servitudes. As we face urgent sustainability challenges, with their strong inter-generational dimensions, the article argues that scholars should think afresh about the need to clarify the moral basis of interpersonal responsibilities in respect of property, with the Thomistic focus on human sustenance providing one candidate for reasoning about ownership obligations. PubDate: Thu, 15 Jun 2023 00:00:00 GMT DOI: 10.1093/ajj/auad013 Issue No:Vol. 68, No. 2 (2023)
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Pages: 153 - 159 Abstract: AbstractIncreasingly, philosophers who write about moral responsibility and accountability practices invoke the concept of “standing,” a term they claim to borrow from legal contexts. Yet critics point out that these philosophers have been maddeningly unclear about what standing is. Worse yet, no single account of the concept of “standing” seems to accommodate its current usage. This essay presents a thin account of standing, defends its usefulness in philosophical analyses of accountability practices, and develops further conceptual tools for thinking about standing. PubDate: Wed, 07 Jun 2023 00:00:00 GMT DOI: 10.1093/ajj/auad009 Issue No:Vol. 68, No. 2 (2023)
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Pages: 161 - 169 Abstract: AbstractAccording to John Goldberg and Ben Zipursky (“Goldursky”), there are two central pillars to tort law, pillars that are best explicated by civil recourse theory. Torts are legally recognized wrongs, and the power to seek redress is part of the Lockean bargain. Using the recent question of whether nondisclosure agreements (NDAs) should be permitted, this Article unearths an instability in the kind of normativity upon which Goldursky relies. Specifically, this paper explores how the unenforceability or bans on NDAs premised upon third party harms may presuppose the victim has a duty to rescue these third parties. I begin by revealing the underlying moral relationship at the heart of these potential duties. From there, I explore how these sorts of arguments cannot easily be voiced within the presuppositions of civil recourse theory. Finally, I consider the pressure points within civil recourse theory that could potentially take on board these moral considerations. My bottom line is simple: Whichever way one thinks about NDAs and the duty to rescue, a dilemma is created for Goldursky. There is simply a mismatch between the kind of arguments that one can make about why it would be (in)appropriate to limit the plaintiff’s cause of action and what the underlying content of tort law should be. Ultimately, the kind of normativity that they need to understand the Lockean bargain, as well as the content of and caveats thereto, may require more bite than positive morality. PubDate: Tue, 13 Jun 2023 00:00:00 GMT DOI: 10.1093/ajj/auad012 Issue No:Vol. 68, No. 2 (2023)
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Pages: 171 - 175 Abstract: Alasdair MacIntyre: An Intellectual Autobiography by Perreau-SaussineÉmile and translated by PinkoskiNathan J.. University of Notre Dame Press, 2022. PubDate: Wed, 24 May 2023 00:00:00 GMT DOI: 10.1093/ajj/auad006 Issue No:Vol. 68, No. 2 (2023)
Hybrid journal (It can contain Open Access articles)
[425 journals]
