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Research Handbook on Private Law Theory
This comprehensive Research Handbook provides an unparalleled overview of contemporary private law theory. Featuring original contributions by leading experts in the field, its extensive examinations of the core areas of contracts, property and torts are complemented by an exploration of a breadth of topics that cross the divide between private and public law, including labor law and corporate law.
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Critical Acclaim
Contributors
Contents
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This comprehensive Research Handbook provides an unparalleled overview of contemporary private law theory. Featuring original contributions by leading experts in the field, its extensive examinations of the core areas of contracts, property and torts are complemented by an exploration of a breadth of topics that cross the divide between private and public law, including labor law and corporate law.
Beginning with a nuanced consideration of the ways in which the private/public distinction has been defined and discussed over time, the Research Handbook investigates and compares differing viewpoints on the concept of private law. Chapters explore key issues in the theory of private law from legal, economic, philosophical, political, feminist, historical and sociological perspectives, utilising a rich diversity of methodological approaches. The contributors also offer a variety of views on the future of private law and private law theory.
The Research Handbook on Private Law Theory will be an essential resource for legal thinkers, in particular scholars and graduate students working in any area of private law. Its varied perspectives on the subject will also be of interest to philosophers, political scientists, economists and sociologists.
Beginning with a nuanced consideration of the ways in which the private/public distinction has been defined and discussed over time, the Research Handbook investigates and compares differing viewpoints on the concept of private law. Chapters explore key issues in the theory of private law from legal, economic, philosophical, political, feminist, historical and sociological perspectives, utilising a rich diversity of methodological approaches. The contributors also offer a variety of views on the future of private law and private law theory.
The Research Handbook on Private Law Theory will be an essential resource for legal thinkers, in particular scholars and graduate students working in any area of private law. Its varied perspectives on the subject will also be of interest to philosophers, political scientists, economists and sociologists.
Critical Acclaim
‘Private law theory today is a powerful scholarly discourse; it can lift up the learning experience of students and teachers making sense of the thickets of our modern law; it can stimulate jurists to make lasting contributions to legal culture, practical ethics and the behavioural and political sciences; and it can inform the practical work of judges, advocates and legislators. This exemplary Handbook lucidly and expertly covers the methods, models and ideals projected by the best writers in the field.’
– Joshua Getzler, University of Oxford, UK
‘This important new volume reflects the burgeoning of academic interest in private law theory over the past decade. Bringing together the leading scholars in their respective fields, this cutting edge Research Handbook is sure to become a standard reference that everyone writing and teaching in the areas of property, contracts and torts will want on their bookshelf.’
– Eduardo M. Peñalver, Dean, Cornell Law School, US
– Joshua Getzler, University of Oxford, UK
‘This important new volume reflects the burgeoning of academic interest in private law theory over the past decade. Bringing together the leading scholars in their respective fields, this cutting edge Research Handbook is sure to become a standard reference that everyone writing and teaching in the areas of property, contracts and torts will want on their bookshelf.’
– Eduardo M. Peñalver, Dean, Cornell Law School, US
Contributors
Contributors: G.S. Alexander, L.M. Austin, A. Bagchi, P. Benson, A. Bernstein, S. Blandy, S. Bright, A. Brudner, H. Dagan, A. Dorfman, C. Estlund, L.A. Fennell, M.A. Geistfeld, A.S. Gold, M. Heller, Y. Kaplan, G.C. Keating, G. Klass, D. Markovits, T.W. Merrill, P.B. Miller, S. Nield, A. Ripstein, I. Samet, R.E. Scott, A.J. Sebok, E. Sherwin, J.W. Singer, H.E. Smith, E.J. Weinrib, B.C. Zipursky
Contents
Contents:
1 Introduction to Research Handbook on Private Law Theory : the distinction
between private law and public law 1
Hanoch Dagan and Benjamin C. Zipursky
PART I CONTRACTS
2 A joint maximization theory of contract and regulation 22
Robert E. Scott
3 Promise, agreement, contract 39
Gregory Klass
4 Public justice and private consent 58
Aditi Bagchi
5 Outline of a public justification of contract law 75
Peter Benson
6 Contract as collaboration 96
Daniel Markovits
7 Choice theory: a restatement 112
Hanoch Dagan and Michael Heller
PART II PROPERTY
8 The architecture of property 134
Thomas W. Merrill and Henry E. Smith
9 Property as the law of complements 155
Lee Anne Fennell
10 Locke and private law 174
Emily Sherwin
11 Autonomy and property 185
Hanoch Dagan
12 The human flourishing theory 203
Gregory S. Alexander
13 Democratic property: things we should not have to bargain for 220
Joseph William Singer
14 Real property on the ground: the law of people and place 237
Sarah Blandy, Sarah Nield, and Susan Bright
PART III TORTS
15 Corrective justice 255
Arthur Ripstein
16 Economic theory of tort law 270
Yotam kaplan
17 Fair precaution 286
Gregory C. Keating
18 Tort as yet another locus of gender injustice in the distribution of money 303
Anita Bernstein
19 Relational justice and torts 321
Avihay Dorfman
20 Folk tort law 338
Mark A. Geistfeld
21 Torts as wrongs and civil recourse theory 356
Benjamin C. Zipursky
PART IV THE DOMAIN OF PRIVATE LAW: EXTENSION
AND REFLECTION
22 Equity 373
Irit Samet
23 Corrective justice, unjust enrichment, and restitution 390
Anthony J. Sebok
24 The fall and rise of the private law of work 412
Cynthia Estlund
25 The corporation as a category in private law 429
Paul B. Miller and Andrew S. Gold
26 Private law and the rule of law 446
Lisa M. Austin
27 How are private wrongs possible? 462
Alan Brudner
28 The normative structuralism of corrective justice 484
Ernest J. Weinrib
Index 499
1 Introduction to Research Handbook on Private Law Theory : the distinction
between private law and public law 1
Hanoch Dagan and Benjamin C. Zipursky
PART I CONTRACTS
2 A joint maximization theory of contract and regulation 22
Robert E. Scott
3 Promise, agreement, contract 39
Gregory Klass
4 Public justice and private consent 58
Aditi Bagchi
5 Outline of a public justification of contract law 75
Peter Benson
6 Contract as collaboration 96
Daniel Markovits
7 Choice theory: a restatement 112
Hanoch Dagan and Michael Heller
PART II PROPERTY
8 The architecture of property 134
Thomas W. Merrill and Henry E. Smith
9 Property as the law of complements 155
Lee Anne Fennell
10 Locke and private law 174
Emily Sherwin
11 Autonomy and property 185
Hanoch Dagan
12 The human flourishing theory 203
Gregory S. Alexander
13 Democratic property: things we should not have to bargain for 220
Joseph William Singer
14 Real property on the ground: the law of people and place 237
Sarah Blandy, Sarah Nield, and Susan Bright
PART III TORTS
15 Corrective justice 255
Arthur Ripstein
16 Economic theory of tort law 270
Yotam kaplan
17 Fair precaution 286
Gregory C. Keating
18 Tort as yet another locus of gender injustice in the distribution of money 303
Anita Bernstein
19 Relational justice and torts 321
Avihay Dorfman
20 Folk tort law 338
Mark A. Geistfeld
21 Torts as wrongs and civil recourse theory 356
Benjamin C. Zipursky
PART IV THE DOMAIN OF PRIVATE LAW: EXTENSION
AND REFLECTION
22 Equity 373
Irit Samet
23 Corrective justice, unjust enrichment, and restitution 390
Anthony J. Sebok
24 The fall and rise of the private law of work 412
Cynthia Estlund
25 The corporation as a category in private law 429
Paul B. Miller and Andrew S. Gold
26 Private law and the rule of law 446
Lisa M. Austin
27 How are private wrongs possible? 462
Alan Brudner
28 The normative structuralism of corrective justice 484
Ernest J. Weinrib
Index 499
