Modern Variations on the Theme

2020 ◽  
pp. 205-230
Author(s):  
Andrew S. Gold
Keyword(s):  
Decision Maker ◽  
Common Law ◽  
Third Party ◽  
Private Law ◽  
Class Actions ◽  
The Way

This chapter considers contemporary developments in private law. We live in a world that increasingly includes statutory encroachments on common law principles, and some of these revisions alter the way legal claims are pursued. A focus on rights of redress offers different perspectives on several of these developments, sometimes offering grounds for critique and sometimes providing support. This chapter will assess the implications of damage caps, arbitration, litigation finance, corporate claims, and class actions. As will be developed, these contemporary legal features suggest that redress exists along several continuums: it can be more or less private; it can depend on a neutral third-party decision-maker or it can be unilateral; it can be more or less subject to a right holder’s control; and it can be more or less complete. Whichever form redress takes, however, it will also implicate questions of justice. In order to fully appreciate why redress matters, each of these features needs to be assessed.

scholarly journals What's Wrong with Restitution

1969 ◽  
Vol 37 (1) ◽  
pp. 221 ◽  
Author(s):  
David Stevens ◽  
Jason W. Neyers
Keyword(s):  
Common Law ◽  
Private Law ◽  
Simple Formulation ◽  
Unjust Enrichment ◽  
The Past ◽  
The Subject ◽  
The Common ◽  
The Law ◽  
The Right ◽  
The Way

The law of restitution has developed out of the law of quasi-contract and the law of constructive trust. Inadequate attention to the logic and coherence of doctrines in the law of restitution, however, renders this new law as opaque and confused as its predecessor. This is largely due to the remedial mentality of the common law. The remedy to the remedial mentality is to concentrate future efforts in stating doctrine on defining rights, not remedies. The precedent for this type of change in method is the transformation that occurred in contract and tort over the past 100 years, inspired, in part, by civilian theories of private law. The right that generates the remedy restitution is the cause of action in unjust enrichment. It arises where there has been a non-consensual receipt and retention of value, that is, a receipt and retention of value that occurs without "juristic reason." "Nonconsensual" means by mistake, by theft or by finding. There are a number of problems in the method of the common law tradition which stand in the way of recognizing this simple formulation: (a) The inherent expansiveness of "restitution " and "unjust enrichment" if these terms are not rigorously defined; (b) The lack of serious competition for the expansive versions of the subject, on a number of fronts; (c) The lack of a clear direction in the efforts to reform the law of quasi-contract and constructive trust; (d) The deeply embedded nature of the quasi-contract thinking; (e) Poor analysis in some areas of the law of contract and (f) Tort; and (g) The lack of an explicit agency of reform in the tradition.

The New Private Law and Intellectual Property

2020 ◽  
pp. 408-426
Author(s):  
Molly Shaffer Van Houweling
Keyword(s):  
Intellectual Property ◽  
Common Law ◽  
Private Law ◽  
Concepts And Categories ◽  
The Common ◽  
The Law ◽  
Law Courts ◽  
Legal Concepts

This chapter studies intellectual property (IP). A hallmark of the New Private Law (NPL) is attentiveness to and appreciation of legal concepts and categories, including the traditional categories of the common law. These categories can sometimes usefully be deployed outside of the traditional common law, to characterize, conceptualize, and critique other bodies of law. For scholars interested in IP, for example, common law categories can be used to describe patent, copyright, trademark, and other fields of IP as more or less “property-like” or “tort-like.” Thischapter investigates both the property- and tort-like features of IP to understand the circumstances under which one set of features tends to dominate and why. It surveys several doctrines within the law of copyright that demonstrate how courts move along the property/tort continuum depending on the nature of the copyrighted work at issue—including, in particular, how well the work’s protected contours are defined. This conceptual navigation is familiar, echoing how common law courts have moved along the property/tort continuum to address disputes over distinctive types of tangible resources.

Civil and Common Law

2020 ◽  
pp. 226-240
Author(s):  
Lionel Smith
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Private Law ◽  
The Future

This chapter aims to answer the question, “what can the civil law tradition tell us about the New Private Law?” It seeks to do this by offering one civilian's perspective on private law, on U.S. private law, and on the New Private Law. In order to answer that question, it is necessary to say a little bit about what is a civilian perspective, or in other words, what makes a jurist a civilian. This is a question to which many different answers could be given. The chapter then looks at the different perspective that a civilian may have on what is the domain of private law. It also asks what insights the civilian's understanding of the discipline of law may offer to common lawyers. From a civilian perspective, the future of the New Private Law will be interesting indeed.

On Treating Oneself and Others as Thermometers

Episteme ◽  
2009 ◽  
Vol 6 (3) ◽  
pp. 233-250 ◽  
Author(s):  
Roger White
Keyword(s):  
Third Party ◽  
Belief States ◽  
The Way

ABSTRACTI treat you as a thermometer when I use your belief states as more or less reliable indicators of the facts. Should I treat myself in a parallel way? Should I think of the outputs of my faculties and yours as like the readings of two thermometers the way a third party would? I explore some of the difficulties in answering these questions. If I am to treat myself as well as others as thermometers in this way, it would appear that I cannot reasonably trust my own convictions over yours unless I have antecedent reason to suppose that I am more likely than you to get things right. I appeal to some probabilistic considerations to suggest that our predicament as thermometers might not actually be as bad as it seems.

scholarly journals An audience with … the public, the representative, the sovereign

2017 ◽  
Vol 28 (1) ◽  
pp. 5-21
Author(s):  
Niccolo Milanese
Keyword(s):  
Common Law ◽  
Affective Learning ◽  
The State ◽  
The Public ◽  
Political Resource ◽  
The Right ◽  
Ways Of Being ◽  
The Way

The right of audience, in common law, is the right of a lawyer to represent a client in a court. Royalty, the Pope and some Presidents grant audiences. What does the power to grant an audience consist in? And what does it mean to demand an audience (with)? Through a reading of the way in which the vocabulary of theatre, acting and audience is involved in the generation of a theory of state by Hobbes and Rousseau, this paper looks to reopen these questions as a political resource for us to re-imagine and refigure our ways of being together. Through readings of Hobbes and Rousseau, it looks at the ways in which the performance of politics creates the public, the representative and the sovereign and the ways these figures interact. It proposes an alternative role for theatre as places of affective learning and a civic ethics of playfulness, in which the auto-institution of the state as an imagined collectivity is fully assumed.

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