The Importance of Interests

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.

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.

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.

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.

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.

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.

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.

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

For decades, public and private international law scholars have debated whether the customary international law on the jurisdiction of States applies to private law. In this article, I argue that it does. Subsequently, I analyse the content of the customary law on jurisdiction of States in different fields of private law with an emphasis on tort law.

Contents: 1. Corporate Social Responsibility and Private Law 2. Company Law, Corporate Governance and Corporate Social Responsibility 3. Contract Law, Global Supply Chains and Corporate Social Responsibility 4. Consumer Protection Law and Corporate Social Responsibility 5. Tort Law and Corporate Social Responsibility 6. The Promotion of Corporate Social Responsibility in English Private Law 7. The Rana Plaza Building Collapse - Corporate Social Responsibility, Private Index

According to the common understanding, tort law is the branch of private law whose set of positive rules, institutions, and procedures aims to shift the costs of accidents from the victim to a different subject. Similar accounts of tort law are widespread and uncontested, yet they fail to do justice to the overall role tort law plays in societies. Tort law does not live in legislatures, law firms, courts, and law books only. It also lives “in the shadow” of the official system of adjudication: in the offices of insurance companies; in people's notions about injury and risk, responsibility and justice; in the languages and images associated with law in mass-generated popular culture; as well as in public debates about what values should be protected and promoted, at what costs, and at the expense of whom. On the assumption that tort law is at the same time a product and a constituent of the very cultural framework in which it is embedded, the aim of this paper is to explore its cultural dimensions in a broad comparative perspective. Combining insights from legal anthropology, socio-legal literature, legal history, and comparative law, the article tries to understand the role that, in Western and non-Western legal traditions, tort law plays in responding to, and managing social conflicts. In this perspective, the paper studies the cultural frameworks that sustain the adjudication process outside and inside the courtrooms, and analyzes how notions, practices, and remedies of tort law “in action” vary across different social and cultural settings. It then puts forward some conclusions about the extent to which tort law notions, ideas, concepts, categorizations, and perceptions influence and, reciprocally, are influenced by the cultural framework of which they are an expression.

Patrick Atiyah is one of the most important legal scholars of his generation in the common-law world. His publications cover a wide field: legal theory, legal history, the study of legal institutions, the law of tort (especially compensation for personal injuries) and, most famously perhaps, the law of contract. It is no exaggeration to say that by his work, Atiyah has opened up new ways of thinking about the law of obligations. This volume of essays, written by colleagues, friends, and admirers of Patrick Atiyah from the UK and abroad, reflects the breadth of his interests. As well as discussions of particular aspects of the law of contract and tort, it contains essays on the history and theory of contract and tort and on the role of judges and law teachers. There is also an assessment of the `law in context' movement of which Patrick Atiyah was a founder member and leading practitioner. Contributors: William Twining, Tony Honoré, Jan Hellner, Robert S. Summers, John Bell, Paul D. Carrington, Robert Stevens, A. W. B. Simpson, Roy Goode, S. M. Waddams, Jane Stapleton, Donald Harris, John Dwyer, John Fleming, and Peter Cane.

Responsibility and Fault collects Tony Honore's recent essays about the familiar form of responsibility that he calls 'outcome responsibility', the kind of re sponsibility that is invoked when an agent is held responsible for some outcome to which he or she has contributed. Outcome responsibility is a familiar and pervasive feature of human life-persons think of themselves, and of each other, in terms of the impact that they have in the world. It is difficult to imagine what human life would be like without it. Our conception of interpersonal interaction is shaped by it, as is our autobiographical conception of ourselves as persons. I apologize to you if I jostle you in the corridor, because the dropping of your pile of papers is the result of my doing. In the quiet of my study, I take credit for solving this week's crossword puzzle, or feel foolish for having yet again spilled coffee into my keyboard. As Honore puts it, 'This responsibility is an essential constituent of our character and identity, without which we would lack both achievements and failures' (at 76). This type of responsibility is the inevitable concomitant of the fact that when humans act, they make their way in the world, changing it in countless ways. Once Honore has drawn our attention to it, the idea of outcome responsibility is familiar, and everywhere. The book's main focus is on the way in which this familiar idea animates the law, particularly the law of torts.' One of the central puzzles of tort theory can be posed as a question about outcome responsibility, and the particular ways in which people can be related to consequences. There are two aspects to this question. The first of these centres around a knot of interpretive questions, about what counts as a consequence in the legally relevant sense, and about how those consequences matter. Honore has done groundbreaking work on this first question, both on his own and together with H.L.A. Hart. Causation and the

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.