The Oxford Handbook of the New Private Law最新文献

Privity 共同利益关系

The Oxford Handbook of the New Private Law Pub Date : 2020-11-10 DOI: 10.1093/oxfordhb/9780190919665.013.28

Mark P. Gergen

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Insurance 保险

The Oxford Handbook of the New Private Law Pub Date : 2020-11-10 DOI: 10.1093/oxfordhb/9780190919665.013.25

K. Abraham

{"title":"Insurance","authors":"K. Abraham","doi":"10.1093/oxfordhb/9780190919665.013.25","DOIUrl":"https://doi.org/10.1093/oxfordhb/9780190919665.013.25","url":null,"abstract":"This chapter highlights insurance law. One of the central principles of the New Private Law is that legal doctrine should be taken seriously. In insurance law, a corollary of that principle would seem to be that legal doctrine should take insurance policy language seriously. Insurance law and insurance law scholarship are largely—though not always—consistent with both the principle and its corollary. A contrasting view is that insurance law doctrine is, or should be, a vehicle for covert judicial regulation of insurance, for the purpose of policyholder protection or in order to promote more risk-spreading generally. This view can be called the “regulatory” conception of insurance law. Insurance law is not only a combination of common law doctrines and federal and state legislative and administrative directives. Insurance law also consists heavily of judicial interpretations of standard-form insurance policy language that has persisted unchanged for so long that the interpretations have the same practical effect as common law doctrines. These interpretations are so heavily anchored to the language of standard-form insurance policies that they are the locus of most insurance coverage disputes. The chapter then looks at the insurance application process; the insurance contract formation and interpretation; the general principles regarding the risks insured; the coordination of insurance coverage; and the remedies for breach of an insurance contract.","PeriodicalId":337737,"journal":{"name":"The Oxford Handbook of the New Private Law","volume":"66 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121942694","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

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Property 财产

The Oxford Handbook of the New Private Law Pub Date : 2020-11-10 DOI: 10.1093/oxfordhb/9780190919665.013.17

J. E. Penner

{"title":"Property","authors":"J. E. Penner","doi":"10.1093/oxfordhb/9780190919665.013.17","DOIUrl":"https://doi.org/10.1093/oxfordhb/9780190919665.013.17","url":null,"abstract":"This chapter discusses property law. It considers the idea that property had a “nominalist” ontology, and it was in danger of “disintegration” as a working legal category for that very reason. Nominalism about property has had a significant impact in U.S. case law. The concern here, however, is whether it is a helpful stance to take as a theorist of property. The chapter argues that it is not. There are indeed “high” level abstractions about property which one cannot plausibly do without if one is to understand property rights and property law doctrine. Moreover, the “bundle of rights” (BOR) challenge does not assist one in making sense of these abstractions. The chapter then looks at the conceptual failure of BOR and the New Private Law as it relates to property. BOR is generally regarded as being underpinned by what might be called the Hohfeld-Honoré synthesis. The synthesis rests upon a fairly serious mistake, which is that while the Hohfeldian examination of jural norms is analytic if it is anything, Honor’s elaboration of the incidents making up ownership is anything but—it is functional. This means that Honoré describes the situation of the owner not principally in terms of his Hohfeldian powers, duties, and rights vis-à-vis others, but in terms of the social or economic advantages that an owner has by virtue of his position, and the terms and limitations of those advantages.","PeriodicalId":337737,"journal":{"name":"The Oxford Handbook of the New Private Law","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129758803","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

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Fiduciary Law 信托法律

The Oxford Handbook of the New Private Law Pub Date : 2020-11-10 DOI: 10.1093/oxfordhb/9780190919665.013.36

W. Wendel

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Equity 股本

The Oxford Handbook of the New Private Law Pub Date : 2020-11-10 DOI: 10.1093/oxfordhb/9780190919665.013.33

B. Mcfarlane

{"title":"Equity","authors":"B. Mcfarlane","doi":"10.1093/oxfordhb/9780190919665.013.33","DOIUrl":"https://doi.org/10.1093/oxfordhb/9780190919665.013.33","url":null,"abstract":"This chapter assesses the relationship between Equity and the New Private Law. It addresses two general questions. The first is what the New Private Law can do for Equity. Recent work on Equity not only exemplifies the significance of the New Private Law but is also vital to justifying the continued distinctiveness of Equitable, as opposed to common law, principles. The second general question is what Equity can do for the New Private Law. If Equity owes much to the New Private Law, the reverse is also true. The distinctiveness of private law lies in the correlative nature of the legal relations it recognizes. By recognizing that duties and liabilities of a defendant correlate to rights of a claimant, it places the claimant in a powerful position. If, then, the distinctiveness of private law lies in the bilateral relationship between defendant and claimant, justifying that distinctiveness requires the identification of mechanisms to deal with the risks created by such a relationship. And Equity provides just such mechanisms. Specific Equitable principles play an important role in justifying the operation of key private law rules, as those Equitable principles mitigate potential specific injustices, as between claimant and defendant, that would otherwise arise from those primary private law rules.","PeriodicalId":337737,"journal":{"name":"The Oxford Handbook of the New Private Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128036180","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

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Historical Perspectives 历史的视角

The Oxford Handbook of the New Private Law Pub Date : 2020-11-10 DOI: 10.1093/oxfordhb/9780190919665.013.13

Joshua Getzler

{"title":"Historical Perspectives","authors":"Joshua Getzler","doi":"10.1093/oxfordhb/9780190919665.013.13","DOIUrl":"https://doi.org/10.1093/oxfordhb/9780190919665.013.13","url":null,"abstract":"This chapter argues that the history of classical jurisprudence can offer a useful stimulus or lead in the development of the New Private Law as it explores the potential of doctrinal reasoning. Two general observations pertain here. The first is that lawyers in both continental and common-law traditions have built on traditional legal heuristics developed in second- and third-century Rome, endlessly adapting and applying these categories in the centuries since. The chapter then uncovers the Roman institutionalist heuristics and suggests that knowledge of these remains desirable for any lawyer seeking to wield legal doctrine as a technique of social decision and ordering. The second major point is that classicism—the deployment of precedent using organizing typologies established by legal tradition—was not always or only a conservative praxis aiming to limit the political authority of the judge. The opposite could be true: classical legal tradition could be highly adventurous, granting jurists the confidence and legitimacy to launch grand experimentation in the ordering and reform of society. Historical jurisprudence was often joined with legal rationalization projects taking the form of treatises, restatements, and codifications aiming to summarize and make available the fruits of past law for modern users.","PeriodicalId":337737,"journal":{"name":"The Oxford Handbook of the New Private Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131090262","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

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Torts 侵权行为

The Oxford Handbook of the New Private Law Pub Date : 2020-11-10 DOI: 10.1093/oxfordhb/9780190919665.013.16

John C. P. Goldberg

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Systems Theory 系统理论

The Oxford Handbook of the New Private Law Pub Date : 2020-11-10 DOI: 10.4135/9781529714401.n464

Henry E. Smith

{"title":"Systems Theory","authors":"Henry E. Smith","doi":"10.4135/9781529714401.n464","DOIUrl":"https://doi.org/10.4135/9781529714401.n464","url":null,"abstract":"Accounts of private law in general and property in particular have downplayed traditional notions of system in favor of a sum-of-the-parts reductionism. Recent developments in complex systems theory allows a reassessment of this picture. A system is a collection of elements and the connections between and among them; complex systems are ones in which the properties of the system as a whole are difficult to infer from the properties of the parts. Private law is a complex system. Taking the bundle of rights in property law as a starting point, the chapter shows that conventional analysis is overly reductive in that it assumes that the attributes of the whole bundle are the additive sum of the attributes of the “sticks” in the bundle taken individually. Theoretically and empirically, this aggregative approach is not as accurate as one based on “organized complexity,” points in the direction of the New Private Law: systems theory leads to a better and more unified account of the bundle of rights, standardization in property, possession, title, and equity. Systems theory also promises to mitigate some of the dichotomies in private law, such as holism versus reductionism, homogeneity versus specialization, formalism versus contextualism, and public versus private law.","PeriodicalId":337737,"journal":{"name":"The Oxford Handbook of the New Private Law","volume":"3 6","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132939702","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

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Defenses 防御

The Oxford Handbook of the New Private Law Pub Date : 2020-11-10 DOI: 10.1093/oxfordhb/9780190919665.013.32

R. Stevens

{"title":"Defenses","authors":"R. Stevens","doi":"10.1093/oxfordhb/9780190919665.013.32","DOIUrl":"https://doi.org/10.1093/oxfordhb/9780190919665.013.32","url":null,"abstract":"This chapter focuses on defenses. A considerable number of theories has grappled with the normative justification(s) for the various claims that arise in private law. This focus on the rights and powers in private law is understandable. After all, without a claim there is nothing much further to discuss. What has gone underexamined are the justifications for the various defenses that exist—the ways of resisting otherwise good claims. Defenses pose a challenge to any monist theory of private law. If private law, or a part of it, is all about efficiency or independence or utility or any other single thing, why not deal with all the elements of what justifies the plaintiff’s claim as an element of the cause of action? Why do people need defenses at all? Either the claim is justified or it is not. On the monist view of private law—that it is only concerned with One Big Thing—what is the need or role for any separate “defenses” that concern countervailing considerations? The chapter then describes what a defense is before looking at pleading and proof and distinguishing between justification and excuse. It also considers the form of reasons and details the general defenses, defenses in contract, defenses to torts, defenses in unjust enrichment, and equitable defenses.","PeriodicalId":337737,"journal":{"name":"The Oxford Handbook of the New Private Law","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116684226","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

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Corrective Justice 矫正正义

The Oxford Handbook of the New Private Law Pub Date : 2020-11-10 DOI: 10.1093/oxfordhb/9780190919665.013.3

Gregory C. Keating

{"title":"Corrective Justice","authors":"Gregory C. Keating","doi":"10.1093/oxfordhb/9780190919665.013.3","DOIUrl":"https://doi.org/10.1093/oxfordhb/9780190919665.013.3","url":null,"abstract":"This chapter discusses the concept of corrective justice, which has been at the heart of much recent scholarship on the law of torts in particular and private law more generally. Notwithstanding its familiarity, ancient origin, and apparent universal acceptance, the concept of corrective justice has produced a remarkable number of distinct conceptions and has stirred up major controversies. For at least a generation, corrective justice stood at the center of the argument between contending conceptions of tort. For legal economists, corrective justice was an aspect of the institution of tort law. It was part of the data that needed to be explained and justified in economic terms. Corrective justice was subordinate. It was a feature of—not a justification for—the institution of tort law. For legal philosophers Ernest Weinrib and Jules Coleman—who championed corrective justice as the countertheory to economic analysis—corrective justice was sovereign. It was both instantiated in the institution of tort law and the justification for the institution. It was incipiently normative. And the justification it supplied was formal, not instrumental. The chapter explains and analyzes corrective justice in light of this history, in the hope that this will set the stage for tort theory to move forward.","PeriodicalId":337737,"journal":{"name":"The Oxford Handbook of the New Private Law","volume":"86 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126288070","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

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