Personal Inviolability and 'Private Law'

The chapters that we have from John Gardner’s book—From Personal Lifeto Private Law—are a striking marriage of cultivated sensibility and analytic prowess. Professor Gardner is both acutely sensitive to the lived experience of our moral relationships and highly skilled at disentangling the threads which those relationships weave together to realize rich and distinctive forms of value. The book, From Personal Lifeto Private Law, pursues its themes with both subtlety and rigor. The chapters that we have in hand trace diverse links between personal life and private law and stimulate thinking in the way that only the best tort theory does. Part of that stimulation stems from the fact that Gardner is challenging one of the most influential schools of contemporary tort theory by pervasively denying one of its core theses.1 At the outset of his manuscript, Gardner rejects the particular strand of Kantianism embodied in the work of theorists like Ernest Weinrib and Arthur Ripstein. Wienrib and Ripstein’s variants of Kantian tort theory place the form of the private lawsuit at the center of tort law and, indeed, at the center of private law more generally. So conceived, the law of torts is a special moral phenomenon, one fitted to a distinctive institutional form. Professor Gardner, by contrast, places his emphasis on the connections between the ideas of duty, responsibility, and reparation that lie at the center of private law and their counterparts in the relationships that figure centrally in our private lives.

Contemporary tort theory is a contest between two moral outlooks. One outlook takes law and morality to be concerned with producing states of the world in which some value—usually well-being—is maximized. This outlook is consequentialist. The other takes law and morality to be concerned with relations among persons—with what it is that people owe to one another. This outlook is deontological. The deontological concern with relations among persons underlies an avowedly formalist account of tort law that rallies around the battle cry that tort is “private law.” Theorists of tort as “private law” understand tort as a law of equal freedom and insist that the substance of the law of torts can be extracted entirely from its form. This view goes wrong by both asking and making too much of form. It asks too much of form when it attempts to make sense of the private law of torts eschews all talk of interests. We cannot understand or justify the law of torts without attending to the fact that urgent individual interests—in physical integrity, in psychological well-being, in privacy, and more—play a fundamental role in the law of torts. Rightful relations among persons are a matter of substance as well as form. Tort law can only establish our equality and independence if it guards urgent interests against impairment and interference. The view of tort as “private law” makes too much of form when it presents tort as a private fiefdom walled off from surrounding legal fields. Tort is one member of a family of institutions responsible for protecting us against unwarranted impairment and interference.

Civil wrongs occupy a significant place in private law. They are particularly prominent in tort law, but equally have a place in contract law, property and intellectual property law, unjust enrichment, fiduciary law, and in equity more broadly. For example, some tort theorists maintain that tort law is best understood as a (or perhaps the) law of civil wrongs, and some contract law theorists maintain that breach of contract is a civil wrong. Civil wrongs are also a preoccupation of leading general theories of private law, including corrective justice and civil recourse theories. According to these and other theories, the centrality of civil wrongs to civil liability shows that private law is fundamentally concerned with the expression and enforcement of norms of justice appropriate to interpersonal interaction and association. Others, sounding notes of caution or criticism, argue that a preoccupation with wrongs and remedies has meant neglect of other ways in which private law serves justice, and ways in which private law serves values other than justice. This book explores the nature of civil wrongs, their place in private law, and their relationship to other forms of wrongdoing. It should be of broad interest to lawyers and legal theorists as well as moral and political theorists.

This book examines how the law of torts, contracts, and restitution can be improved by showing how private law reduces the cost of accidents, lubricates bargains, and encourages unrequested benefits. It considers the two pervasive rules of tort law that provide incentives for actors to reduce accident costs: strict liability and negligence. It also explains how contract law achieves effiency through the remedy of damages and how restitution law allows benefactors to recover gains that their beneficiaries wrongfully obtained from them. The book makes three central claims: misalignments in tort law should be removed; in contract law, promisee's incentives should be improved; and the law should recognize some right of compensation for those who produce unrequested benefits. Each claim is based on the desire to reform private law and to make it more effective in promoting social welfare.

Introduction PART 1: THE PRIVATE LAW CONTRIBUTION TO THE RULE OF LAW 1. Fidelity in Law's Commonwealth 2. The Rule of Law and Private Law 3. The Rule of Law as the Rule of Private Law 4. Liberty and Legal Form 5. Unseating Unilateralism 6. Torts and the Rule of Law 7. Private Law Pluralism and the Rule of Law PART II: THE RULE OF LAW CONTRIBUTION TO PRIVATE LAW 8. Strict Duties and the Rule of Law 9. Some Rule-of-Law Anxieties about Strict Liability in Private Law 10. Property, Equity, and the Rule of Law 11. Equity and the Rule of Law 12. The Power of the Rule of Law 13. Boilerplate: A Threat to the Rule of Law? 14. The Rule of Law and Time's Arrow

Regulatory property pieces together two debated issues familiar to legal scholars of all systems, i.e. the issue of what can constitute an object of property, which constantly raises new questions; and, the consequences of regulatory policies and the fundamental interconnection between private law and public policy objectives. It is a heterogeneous category and it is very difficult to create an exhaustive list of the rights involved, rights which lack explicit legislative recognition but which are the subject of relevant social and legal interests and essentially have in common the fact that they have been created to satisfy specific public policy goals. This paper analyses the role of some illustrative examples of regulatory property (such as milk quotas, emission rights, airport slots, spectrum usage rights) in the context of the modern market economy shaped by multi-level regulation, adopting a multi-disciplinary approach (private law, public law, and law and economics). The aim of this study is to verify whether the emergence of the novel rights under scrutiny – whose recognition is left to doctrine and jurisprudence so that they may benefit only indirectly from the legal protection provided by contract law and tort law – also marks a metamorphosis of property law. To this end, it focuses on the recent introduction of market mechanisms in the chosen sectors, proving the necessary complementarity between private law, public law and sector-specific legislation.

Interstitial Private Law encourages the next generation of private law theorists to engage with the “connective tissue” of private law. Long regarded by US legal scholars as uninteresting, private law theory has received renewed attention in the United States and around the world. Yet, even amid this scholarly revival, private law is still too often reduced to the more traditional concepts found within tort, property, and contract law. These basic categories alone cannot provide sufficient basis for informed doctrinal analysis—lawyers who hope to apply private law theory must also understand the rules and concepts that operate independently of, across, or within the interstices of these fields. This book introduces and analyzes these crucially important interstitial aspects, including legal personhood, agency, and other attribution rules, consent, estoppel, equity, remedies, and restitution. Contributions explain what interstitial concepts are and explore the ways they operate, contributing to the systematicity and functional coherence of private law systems. In doing so, the book broadens and deepens the scholarly agenda for private law theory in the United States and worldwide.

Unity, divergence and convergence in the common law of obligations / Andrew Robertson and Michael Tilbury -- The influence of comparative law on the English law of obligations / Andrew Burrows -- Unity, then divergence : the Privy Council, the common law of England and the common law of Canada, Australia and New Zealand / Paul Finn -- A conscious effort to develop a "different" common law of obligations : a possible endeavour? / Goh Yihan -- A common law of tort : is there a European rift in the common law family? / Paula Giliker -- A judicial perspective on the development of common law doctrine in the light of statute law / Anthony Mason -- Public actors and private obligations : a judicial perspective / Sian Elias -- The tort liability of public authorities : a comparative analysis / Peter Cane -- We'll meet again : convergence in the private law treatment of public bodies / Niamh Connolly -- How to have a common private law : the presuppositions of legal conversation / Allan Beever -- The philosophies of the common law and their implications : common law divergences, public authority liability and the future of a common law world / Dan Priel -- Obligations, governance and society : bringing the state back in / TT Arvind -- Divergent evolution in the law of torts : jurisdictional isolation, jurisprudential divergence and explanatory theories / James Gouldkamp and John Murphy -- Common law values : the role of party autonomy in private law / Sarah Worthington

Sex Trafficking: A Private Law Response examines existing and potential causes of action against sex traffickers, clients and the state and argues for fair and effective private law remedies. Combining a theoretical inquiry about the borders of liability in torts and restitution with a political commitment to protecting the interests of victims of sex trafficking, this book offers a comparative doctrinal and socio-legal analysis of private law remedies, their justification, and their effectiveness. Tsachi Keren-Paz innovatively and convincingly makes the argument that all those directly involved in breaching the rights of victims of sex trafficking should compensate them for their losses, and make restitution of the profits made at their expense. Sex Trafficking: A Private Law Response will be invaluable to both academics and practitioners concerned with prostitution, modern slavery and trafficking, and those interested in private law theory and practice.

Recent years have seen wide-ranging debates on the nature of tort law. For some, tort law is firmly placed within private law: it is concerned with the rights individuals have against each other and with the legal implications of the violation of those rights. Others emphasise the extent to which broad social considerations enter into the determination of tort liability and the many ways in which tort law today serves a public role that is ill-explained by the private law model. Given the centrality of negligence in contemporary tort law, much of this debate focused on this tort, but recent litigation that culminated in the House of Lords' decision in Ashley v Chief Constable of Sussex Police1 and some academic commentary relating to it provide an opportunity for examining these questions in the context of the intentional torts.

It is needless to say that human rights play an important role in Austrian law. However, as in many other jurisdictions, there has long been uncertainty about the influence of human rights on private law. The article gives an overview on the subject matter from the perspective of Austrian law. The authors start with remarks on basic issues of human rights and then discuss their impact on various areas of private law (e.g. contract law, tort law, family law). By analysing the general principles of each field of law, they show that private law serves as a guardian of human rights.

Tort law is generally considered to be an instrument that improves incentives. Yet many people and groups (including firefighters and police officers) enjoy some form of immunity. I show that those who enjoy immunity typically externalize the precaution costs to some degree. I analyze an extension of the standard unilateral accident model (with risk neutrality and fixed activity levels) that includes parameters that capture the degree to which the injurer internalizes precaution costs and expected harm. I find that when injurers externalize precaution costs, strict liability should not be used (as it leads to overprecaution), and negligence rules should be more lenient (because too high due care levels are less likely to be corrected) and more predictable (because uncertainty has a much stronger chilling effect). Therefore, negligence may need to take the form of gross negligence (for example, firefighter liability) or qualified or good-faith liability (for example, constitutional torts).

Against the backdrop of contemporary climate change lawsuits, this article presents preliminary research findings regarding a remarkable and underappreciated moment in the common law pre-history of modern environmental, health, and safety regulation. The findings complicate the conventional academic story about the limited capabilities of tort law and its inevitable displacement by more institutionally robust and sophisticated forms of regulation. Section I offers a brief introduction, followed in Section II by a review of existing academic literature on the pros and cons of utilising tort law as a regulatory device. As will be seen, the consensus view seems to be that tort law is a clumsy and imperfect mechanism for addressing most environmental, health, and safety risks. Section III argues that the debate over tort law’s potential as a risk regulation mechanism ignores the distinctively private law history and character of that body of law, essentially asking tort to serve a purpose for which it was neither intended nor designed. Section IV then presents a case study of nuisance litigation in which the tort system achieves a remarkable and underappreciated risk regulation effect precisely by focusing narrowly on the traditional task of adjudicating alleged wrongs between private parties. Section V concludes.

Tort law occupies an unusual place in the legal academy. No other doctrinal area is both central to the curriculum and widely disdained. I argue that the root of this disdain is the idea that tort is centrally concerned with remedies. Puzzles about the choice of fault as opposed to strict liability are generated by the thought that tort law is an incoherent mix of blame-based liability and that "pay as you go" system for socially useful activities. Neither of these tasks is easy to reconcile with the broader functions and aspirations of a liberal state. In place of this familiar picture, I argue that tort law is fundamentally about the obligations private persons of within a system of reciprocal limits on freedom, and show that remedies do no more than uphold those limits. This way of thinking about private obligations casts distinctive light on the role of fault within tort law. Harm-based torts, including negligence and nuisance, always have a fault requirement. With this distinction in hand, I look two of the leading examples of “pay as you go” liability. I show that Rylands v. Fletcher contains a fault element, and that Vincent v. Lake Erie is best analyzed as a familiar case of a trespass against property. The paper concludes with some more general reflections on the place of norms of private conduct within a liberal state.

The fault of the wrongdoer is one of the preconditions for general tort liability. Nowadays, fault-based liability and strict liability are two equally important forms of liability that are not polar opposites but, rather, complement one another. This article focuses on the meaning of the fault of a tortfeasor. It considers the notion of fault in two European model rules (the Draft Common Frame of Reference and the Principles of European Tort Law), in the Estonian Law of Obligations Act, and also makes reference to German, French, English, and Russian tort law. We shall begin with a comparative discussion of the questions of general liability based on fault, fault capacity, various forms of fault, the burden of proving fault, and the importance of differentiating those forms of fault. Thereafter, we will treat the issues of fault in the context of liability for torts committed by another person and, also, borderline issues between fault-based liability and strict liability. This analysis seeks to offer the reader a basis for determining whether the regulations of Estonian tort law are justified or whether amendments should be considered within such a comparative-law framework.