Michael A. Carrier
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780195342581
- eISBN:
- 9780199867035
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195342581.003.0016
- Subject:
- Law, Intellectual Property, IT, and Media Law
This concluding chapter synthesizes the benefits of treating the IP and antitrust laws together in seeking to foster innovation. It recounts the wide swath of the economy and expanse of cutting-edge ...
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This concluding chapter synthesizes the benefits of treating the IP and antitrust laws together in seeking to foster innovation. It recounts the wide swath of the economy and expanse of cutting-edge innovation topics covered by the proposals. It shows how the recommendations rescue Congress's intent, and recaps the nuance and practical nature of the proposals. It underscores the global appeal of the topics and analysis of the laws of Australia, China, the EU, India, Japan, and Korea. Finally it shows how the book seeks to carve out a greater role for innovation in copyright, patent, and antitrust law.Less
This concluding chapter synthesizes the benefits of treating the IP and antitrust laws together in seeking to foster innovation. It recounts the wide swath of the economy and expanse of cutting-edge innovation topics covered by the proposals. It shows how the recommendations rescue Congress's intent, and recaps the nuance and practical nature of the proposals. It underscores the global appeal of the topics and analysis of the laws of Australia, China, the EU, India, Japan, and Korea. Finally it shows how the book seeks to carve out a greater role for innovation in copyright, patent, and antitrust law.
T. A. Cavanaugh
- Published in print:
- 2006
- Published Online:
- September 2006
- ISBN:
- 9780199272198
- eISBN:
- 9780191604157
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199272190.003.0005
- Subject:
- Religion, Philosophy of Religion
This chapter considers a number of remaining questions following the arguments of the previous chapters: Does one owe reparations for causing foreseen harm? How (considering cases Quinn proposes) ...
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This chapter considers a number of remaining questions following the arguments of the previous chapters: Does one owe reparations for causing foreseen harm? How (considering cases Quinn proposes) does double effect apply in cases of allowing? Can one employ double effect to evaluate one’s otherwise good act that becomes problematic due to another’s wrongful conduct (material cooperation)? While the i/f distinction has independent ethical relevance, must the law accord it similar independent legal import? How does the Roman Catholic Church receive DER? The chapter also indicates how jurists in constitutional legal systems that incorporate exceptionless legal norms (such as the U.S. Bill of Rights) employ a legal analogue to double effect.Less
This chapter considers a number of remaining questions following the arguments of the previous chapters: Does one owe reparations for causing foreseen harm? How (considering cases Quinn proposes) does double effect apply in cases of allowing? Can one employ double effect to evaluate one’s otherwise good act that becomes problematic due to another’s wrongful conduct (material cooperation)? While the i/f distinction has independent ethical relevance, must the law accord it similar independent legal import? How does the Roman Catholic Church receive DER? The chapter also indicates how jurists in constitutional legal systems that incorporate exceptionless legal norms (such as the U.S. Bill of Rights) employ a legal analogue to double effect.
George P. Fletcher
- Published in print:
- 2003
- Published Online:
- November 2003
- ISBN:
- 9780195156287
- eISBN:
- 9780199872169
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0195156285.003.0002
- Subject:
- Political Science, American Politics
This chapter discusses the influence of religious ideas on legal values and experience, citing examples from religious law (especially Jewish law and the Talmud), the French civil code, and the ...
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This chapter discusses the influence of religious ideas on legal values and experience, citing examples from religious law (especially Jewish law and the Talmud), the French civil code, and the German Constitution. The idea of law as a path to redemption for a people or nation is examined. The author points out that he considers the “original intent” of the framers of the Constitution (and its subsequent Amendments) irrelevant for the purposes of this book's analysis.Less
This chapter discusses the influence of religious ideas on legal values and experience, citing examples from religious law (especially Jewish law and the Talmud), the French civil code, and the German Constitution. The idea of law as a path to redemption for a people or nation is examined. The author points out that he considers the “original intent” of the framers of the Constitution (and its subsequent Amendments) irrelevant for the purposes of this book's analysis.
Alan M. Dershowitz
- Published in print:
- 2003
- Published Online:
- November 2003
- ISBN:
- 9780195158076
- eISBN:
- 9780199869848
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0195158075.003.0003
- Subject:
- Political Science, American Politics
Gives an account of the final decision of the US Supreme Court on the Florida vote in the (Bush vs Gore) US presidential election of 2000. Includes discussion of the deliberations and decisions of ...
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Gives an account of the final decision of the US Supreme Court on the Florida vote in the (Bush vs Gore) US presidential election of 2000. Includes discussion of the deliberations and decisions of the Florida Supreme Court in the case of the recount in that state. The main sections of the chapter are: Imperfect Ballots and the Misuse of the Equal‐Protection Clause; Discerning Intent; The Majority's Curious Use of Precedent to Reach Its Result — the inability of the majority of the Supreme Court to point to any case that supported its questionable interpretation of the equal‐protection clause; Of Fundamental Rights, Equal Protection, and Victims; Limited Circumstances — the statement by the Supreme Court that their consideration was limited to the 2000 US presidential election; The Article II Argument — by the US Supreme Court that the Florida Supreme Court had usurped the constitutional authority of the legislature; and Justification by National Crisis.Less
Gives an account of the final decision of the US Supreme Court on the Florida vote in the (Bush vs Gore) US presidential election of 2000. Includes discussion of the deliberations and decisions of the Florida Supreme Court in the case of the recount in that state. The main sections of the chapter are: Imperfect Ballots and the Misuse of the Equal‐Protection Clause; Discerning Intent; The Majority's Curious Use of Precedent to Reach Its Result — the inability of the majority of the Supreme Court to point to any case that supported its questionable interpretation of the equal‐protection clause; Of Fundamental Rights, Equal Protection, and Victims; Limited Circumstances — the statement by the Supreme Court that their consideration was limited to the 2000 US presidential election; The Article II Argument — by the US Supreme Court that the Florida Supreme Court had usurped the constitutional authority of the legislature; and Justification by National Crisis.
Terence Ball
- Published in print:
- 1994
- Published Online:
- November 2003
- ISBN:
- 9780198279952
- eISBN:
- 9780191598753
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198279957.003.0011
- Subject:
- Political Science, Political Theory
This chapter takes a fresh look at the interpretive strategy of `originalism’ or `original intent’ and shows that this strategy is defective for a number of heretofore unsuspected reasons. Chief ...
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This chapter takes a fresh look at the interpretive strategy of `originalism’ or `original intent’ and shows that this strategy is defective for a number of heretofore unsuspected reasons. Chief among these is that a thoroughgoing originalism would require one to accept the once‐credible but now‐discredited or defunct theories and vocabularies within whose terms the Founders thought about politics and framed the Constitution.Less
This chapter takes a fresh look at the interpretive strategy of `originalism’ or `original intent’ and shows that this strategy is defective for a number of heretofore unsuspected reasons. Chief among these is that a thoroughgoing originalism would require one to accept the once‐credible but now‐discredited or defunct theories and vocabularies within whose terms the Founders thought about politics and framed the Constitution.
Michael Moore
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199599493
- eISBN:
- 9780191594649
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199599493.003.0011
- Subject:
- Law, Philosophy of Law, Criminal Law and Criminology
No one just intends – they intend that something be the case. Intentions take objects, they have content, they exhibit Intentionality. This fact about the psychology of intentions becomes important ...
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No one just intends – they intend that something be the case. Intentions take objects, they have content, they exhibit Intentionality. This fact about the psychology of intentions becomes important because the gradations in culpability explored in chapter 9 depend on there being some non-arbitrary way to individuate intentions by their objects. Three views of these objects – in terms of real world objects, sentences, or propositions – are considered. A moral test (in terms of non-identical in fact but equivalent in morality intentions) that would bypass these thorny metaphysical issues is also considered but rejected.Less
No one just intends – they intend that something be the case. Intentions take objects, they have content, they exhibit Intentionality. This fact about the psychology of intentions becomes important because the gradations in culpability explored in chapter 9 depend on there being some non-arbitrary way to individuate intentions by their objects. Three views of these objects – in terms of real world objects, sentences, or propositions – are considered. A moral test (in terms of non-identical in fact but equivalent in morality intentions) that would bypass these thorny metaphysical issues is also considered but rejected.
Dr. David Nersessian
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199588909
- eISBN:
- 9780191594557
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199588909.003.0004
- Subject:
- Law, Human Rights and Immigration, Public International Law
This chapter addresses the personal fault elements comprising the mens rea of genocide. It discusses the crime's unique specific intent requirements and analyses the discriminatory targeting of ...
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This chapter addresses the personal fault elements comprising the mens rea of genocide. It discusses the crime's unique specific intent requirements and analyses the discriminatory targeting of protected groups for destruction. It addresses the complexities of ascertaining a perpetrator's specific intent to destroy a human group ‘as such’ and discusses how such intent can be established at trial. It also considers the merits of analysing the perpetrator's mental state in terms of numerical considerations (targeting either a percentage of the targeted group or a certain threshold number of victims) versus other types of criteria (such as the effects of targeting group leaders or other important segments of the group on the group's overall ability to survive ‘as such’).Less
This chapter addresses the personal fault elements comprising the mens rea of genocide. It discusses the crime's unique specific intent requirements and analyses the discriminatory targeting of protected groups for destruction. It addresses the complexities of ascertaining a perpetrator's specific intent to destroy a human group ‘as such’ and discusses how such intent can be established at trial. It also considers the merits of analysing the perpetrator's mental state in terms of numerical considerations (targeting either a percentage of the targeted group or a certain threshold number of victims) versus other types of criteria (such as the effects of targeting group leaders or other important segments of the group on the group's overall ability to survive ‘as such’).
Randy E. Barnett
- Published in print:
- 2013
- Published Online:
- October 2017
- ISBN:
- 9780691159737
- eISBN:
- 9781400848133
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691159737.003.0005
- Subject:
- Law, Constitutional and Administrative Law
This chapter argues that the Constitution must be interpreted according to its original meaning. This method of interpretation is commonly known as “originalism,” which is often seen as following ...
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This chapter argues that the Constitution must be interpreted according to its original meaning. This method of interpretation is commonly known as “originalism,” which is often seen as following from popular sovereignty. The chapter suggests that originalism is entailed by a commitment to a written constitution, which is a vital means of subjecting lawmakers to limits on their lawmaking powers. The chapter first examines how considerations of constitutional legitimacy justify originalism before advancing a version of originalism that is based on “original meaning” rather than “original intent.” It explains how original meaning originalism avoids the prominent objections leveled at originalism. It shows that originalism is warranted because it is the best method to preserve or “lock in” a constitution that is initially legitimate because of what is says.Less
This chapter argues that the Constitution must be interpreted according to its original meaning. This method of interpretation is commonly known as “originalism,” which is often seen as following from popular sovereignty. The chapter suggests that originalism is entailed by a commitment to a written constitution, which is a vital means of subjecting lawmakers to limits on their lawmaking powers. The chapter first examines how considerations of constitutional legitimacy justify originalism before advancing a version of originalism that is based on “original meaning” rather than “original intent.” It explains how original meaning originalism avoids the prominent objections leveled at originalism. It shows that originalism is warranted because it is the best method to preserve or “lock in” a constitution that is initially legitimate because of what is says.
Michael Moore
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199599493
- eISBN:
- 9780191594649
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199599493.003.0009
- Subject:
- Law, Philosophy of Law, Criminal Law and Criminology
Overall blameworthiness is seen as a function of two moral properties, wrongdoing and culpability. This chapter and the four next succeeding all deal with culpability. Prima facie moral culpability ...
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Overall blameworthiness is seen as a function of two moral properties, wrongdoing and culpability. This chapter and the four next succeeding all deal with culpability. Prima facie moral culpability is prima facie only in the sense that considerations of excuse are temporarily excluded. The chapter gives an overview of possible gradations in degrees of culpability depending on whether a given harm was: desired for its own sake; intended as a means to something else that was desired for its own sake; believed with certainty to follow on one’s actions; believed to some substantial degree of risk to follow on one’s action; unreasonably risked even if not desired, intended, or unaccompanied by any level of predictive belief. These states of intention, desire, belief, and unreasonable risk, constitute the various degrees of prima facie culpability with which a given wrong can be done.Less
Overall blameworthiness is seen as a function of two moral properties, wrongdoing and culpability. This chapter and the four next succeeding all deal with culpability. Prima facie moral culpability is prima facie only in the sense that considerations of excuse are temporarily excluded. The chapter gives an overview of possible gradations in degrees of culpability depending on whether a given harm was: desired for its own sake; intended as a means to something else that was desired for its own sake; believed with certainty to follow on one’s actions; believed to some substantial degree of risk to follow on one’s action; unreasonably risked even if not desired, intended, or unaccompanied by any level of predictive belief. These states of intention, desire, belief, and unreasonable risk, constitute the various degrees of prima facie culpability with which a given wrong can be done.
Michael Lobban
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199258826
- eISBN:
- 9780191705168
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199258826.003.0024
- Subject:
- Law, Legal History
Traditional tort doctrine taught that a person who intentionally performed an unlawful act which harmed another was liable for the damage suffered. In the second half of the 19th century, judges and ...
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Traditional tort doctrine taught that a person who intentionally performed an unlawful act which harmed another was liable for the damage suffered. In the second half of the 19th century, judges and jurists sought to extend this law, to hold those who performed otherwise lawful acts liable if they had done so with the intention of harming others and with no justification. This development was part of the late 19th-century attempt to put the law of tort on a set of broad, theoretical principles. This chapter discusses malice and intent in early 19th-century law, economic torts, rethinking malice and intent, and rethinking conspiracy.Less
Traditional tort doctrine taught that a person who intentionally performed an unlawful act which harmed another was liable for the damage suffered. In the second half of the 19th century, judges and jurists sought to extend this law, to hold those who performed otherwise lawful acts liable if they had done so with the intention of harming others and with no justification. This development was part of the late 19th-century attempt to put the law of tort on a set of broad, theoretical principles. This chapter discusses malice and intent in early 19th-century law, economic torts, rethinking malice and intent, and rethinking conspiracy.
E. Allan Farnsworth
- Published in print:
- 2004
- Published Online:
- March 2012
- ISBN:
- 9780199276110
- eISBN:
- 9780191699887
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199276110.001.0001
- Subject:
- Law, Law of Obligations
This book examines the legal issues that arise when we seek to avoid the untoward consequences of an action by claiming that our perception was flawed. We all make mistakes: we might overpay a debt, ...
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This book examines the legal issues that arise when we seek to avoid the untoward consequences of an action by claiming that our perception was flawed. We all make mistakes: we might overpay a debt, make an unfavourable contract, or be sued or accused of a crime as a result of our mistake. Claims to alleviation on the grounds of mistake are likely to arise wherever the law prescribes a state of mind (some kind of intent) as a prerequisite for the application of a legal rule. This book asks when the fact that a person made a mistake should entitle them to alleviation. This may involve the intention to enter into a contract or a payment, in which case a person could seek its reversal, or it might involve the intent to commit a tort or crime, in which case they could seek forgiveness for the offence. The book defines ‘alleviating’ mistakes as those which entitle a person to relief from untoward consequences of their mistake. There is no general ‘law of mistake’ and, despite their similarities, few discussions of mistake in one setting pause to consider mistakes in other contexts. The goals of fields as disparate as contracts and criminal law are very different: how do these differences affect the treatment of mistakes? The book sets out a new taxonomy of mistakes. Its analysis reveals that over the past century, there has been a remarkable increase in the receptivity of courts and scholars to claims for both reversal and forgiveness—a waxing of alleviating mistakes.Less
This book examines the legal issues that arise when we seek to avoid the untoward consequences of an action by claiming that our perception was flawed. We all make mistakes: we might overpay a debt, make an unfavourable contract, or be sued or accused of a crime as a result of our mistake. Claims to alleviation on the grounds of mistake are likely to arise wherever the law prescribes a state of mind (some kind of intent) as a prerequisite for the application of a legal rule. This book asks when the fact that a person made a mistake should entitle them to alleviation. This may involve the intention to enter into a contract or a payment, in which case a person could seek its reversal, or it might involve the intent to commit a tort or crime, in which case they could seek forgiveness for the offence. The book defines ‘alleviating’ mistakes as those which entitle a person to relief from untoward consequences of their mistake. There is no general ‘law of mistake’ and, despite their similarities, few discussions of mistake in one setting pause to consider mistakes in other contexts. The goals of fields as disparate as contracts and criminal law are very different: how do these differences affect the treatment of mistakes? The book sets out a new taxonomy of mistakes. Its analysis reveals that over the past century, there has been a remarkable increase in the receptivity of courts and scholars to claims for both reversal and forgiveness—a waxing of alleviating mistakes.
John A. Ragosta
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780195388060
- eISBN:
- 9780199866779
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195388060.003.0007
- Subject:
- History, American History: early to 18th Century
Given dissenters' central role in Virginia's adoption of religious liberty, their understanding of the meaning of religious freedom takes on particular importance. Virginia's evangelical dissenters, ...
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Given dissenters' central role in Virginia's adoption of religious liberty, their understanding of the meaning of religious freedom takes on particular importance. Virginia's evangelical dissenters, for both religious and political reasons, supported a strict separation of church and state and opposed any formal notion that the United States was a “Christian nation.” They insisted that all government privileges and rights be equally available to all people, whether Christian, Jewish, Muslim, or atheist. Contrary to modern suggestions that such views are secular, dissenters were deeply concerned about the corrupting influence of the state on the church. Dissenters also supported a very robust free exercise of religion, including a public religious discourse. They would have supported exemption from some laws which, while nominally nondiscriminatory towards religion, particularly impacted worship or religion.Less
Given dissenters' central role in Virginia's adoption of religious liberty, their understanding of the meaning of religious freedom takes on particular importance. Virginia's evangelical dissenters, for both religious and political reasons, supported a strict separation of church and state and opposed any formal notion that the United States was a “Christian nation.” They insisted that all government privileges and rights be equally available to all people, whether Christian, Jewish, Muslim, or atheist. Contrary to modern suggestions that such views are secular, dissenters were deeply concerned about the corrupting influence of the state on the church. Dissenters also supported a very robust free exercise of religion, including a public religious discourse. They would have supported exemption from some laws which, while nominally nondiscriminatory towards religion, particularly impacted worship or religion.
John A. Ragosta
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780195388060
- eISBN:
- 9780199866779
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195388060.003.0008
- Subject:
- History, American History: early to 18th Century
Virginia's history of religious persecution and religious freedom played a central role in adoption of the First Amendment to the Constitution and the subsequent evolution of American religious ...
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Virginia's history of religious persecution and religious freedom played a central role in adoption of the First Amendment to the Constitution and the subsequent evolution of American religious freedom, and it is appropriate that the Virginia experience continue to be given a central place in its understanding. Unfortunately, the role of dissenters has often been underestimated. This has occurred, in part, by the elevation of the views of Thomas Jefferson and James Madison, in spite of Madison's particular interest in promoting the dissenters' views. Historic forgetfulness has also been encouraged by the triumphant role that former dissenters claimed in the Revolution—not wishing to stress the contingent nature of their support—and the desire of former Anglicans to minimize any religious conflict. The dissenters' story demonstrates the highly contingent nature of the development of religious freedom in early America and the significance of their fight. Further, the politicization of the dissenters in the Revolutionary negotiations for religious freedom and the resulting republicanization of Virginia were to play an important role in the development of the new republic.Less
Virginia's history of religious persecution and religious freedom played a central role in adoption of the First Amendment to the Constitution and the subsequent evolution of American religious freedom, and it is appropriate that the Virginia experience continue to be given a central place in its understanding. Unfortunately, the role of dissenters has often been underestimated. This has occurred, in part, by the elevation of the views of Thomas Jefferson and James Madison, in spite of Madison's particular interest in promoting the dissenters' views. Historic forgetfulness has also been encouraged by the triumphant role that former dissenters claimed in the Revolution—not wishing to stress the contingent nature of their support—and the desire of former Anglicans to minimize any religious conflict. The dissenters' story demonstrates the highly contingent nature of the development of religious freedom in early America and the significance of their fight. Further, the politicization of the dissenters in the Revolutionary negotiations for religious freedom and the resulting republicanization of Virginia were to play an important role in the development of the new republic.
William J. McGuire
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780195385540
- eISBN:
- 9780199869824
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195385540.003.0002
- Subject:
- Psychology, Social Psychology
Three stages in the life of an artifact are (a) ignorance of its existence, (b) coping with the artifact, and (c) exploiting it for what it can tell us about human behavior. This chapter focuses on ...
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Three stages in the life of an artifact are (a) ignorance of its existence, (b) coping with the artifact, and (c) exploiting it for what it can tell us about human behavior. This chapter focuses on the subject's suspicions of the experimenter's intent, with special emphasis on strategies for recognizing, coping with, and exploiting this source of artifact.Less
Three stages in the life of an artifact are (a) ignorance of its existence, (b) coping with the artifact, and (c) exploiting it for what it can tell us about human behavior. This chapter focuses on the subject's suspicions of the experimenter's intent, with special emphasis on strategies for recognizing, coping with, and exploiting this source of artifact.
Jack Stillinger
- Published in print:
- 1999
- Published Online:
- October 2011
- ISBN:
- 9780195130225
- eISBN:
- 9780199855209
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195130225.001.0001
- Subject:
- Literature, 19th-century Literature and Romanticism
Using the 180-year history of Keats’s “Eve of St. Agnes” as a basis for theorizing about the reading process, this book explores the nature and whereabouts of “meaning” in complex works. A proponent ...
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Using the 180-year history of Keats’s “Eve of St. Agnes” as a basis for theorizing about the reading process, this book explores the nature and whereabouts of “meaning” in complex works. A proponent of authorial intent, the author argues a theoretical compromise between author and reader, applying a theory of interpretive democracy that includes the endlessly multifarious reader’s response as well as Keats’s guessed-at intent. The author also ruminates on the process of constructing meaning, and posits an answer to why Keats’s work is considered canonical, and why it is still being read and admired.Less
Using the 180-year history of Keats’s “Eve of St. Agnes” as a basis for theorizing about the reading process, this book explores the nature and whereabouts of “meaning” in complex works. A proponent of authorial intent, the author argues a theoretical compromise between author and reader, applying a theory of interpretive democracy that includes the endlessly multifarious reader’s response as well as Keats’s guessed-at intent. The author also ruminates on the process of constructing meaning, and posits an answer to why Keats’s work is considered canonical, and why it is still being read and admired.
Ernest J Weinrib
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199567751
- eISBN:
- 9780191705267
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199567751.003.0002
- Subject:
- Law, Law of Obligations, Philosophy of Law
Unjust enrichment, understood as a defective transfer of value, gives rise to liability that instantiates corrective justice. As a characteristic of things of value (whether of objects or of labour), ...
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Unjust enrichment, understood as a defective transfer of value, gives rise to liability that instantiates corrective justice. As a characteristic of things of value (whether of objects or of labour), the value of the thing is an entitlement of the owner of the thing. But (as Hegel explains) value also has a set of characteristics (it is quantitative, intrinsically relational, and independent of the particularity of the owner) that allow the law to treat it in abstraction from the thing of value. Thus, the law can recognize a claim involving an unjust transfer of value even though the defendant's right to the thing of value is not in question. A transfer of value (‘enrichment at another's expense’) occurs when one transfers a thing of value without the reciprocal receipt of a thing of equivalent value. The question then arises whether such a transfer is ‘unjust’, that is, whether circumstances are present that create an obligation to retransfer the value. This obligation arises if the transferor has given the value without donative intent and if the value has been accepted by the transferee as non-donatively given; the transferee cannot keep for free what was given and received non-gratuitously. Incontrovertible benefit and change of position affect acceptance as an obligation-creating condition, not enrichment as an aspect of transfer. Accordingly, an unjust enrichment situates the parties correlatively as transferor and transferee of what was not transferred gratuitously, thereby conforming to corrective justice. In accordance with Kant's conception of an in personam right as a right to the causality of another's will, the claimant's right is not to the value as such, but to having the value retransferred. This is the right to which the defendant's duty to make restitution is correlative.Less
Unjust enrichment, understood as a defective transfer of value, gives rise to liability that instantiates corrective justice. As a characteristic of things of value (whether of objects or of labour), the value of the thing is an entitlement of the owner of the thing. But (as Hegel explains) value also has a set of characteristics (it is quantitative, intrinsically relational, and independent of the particularity of the owner) that allow the law to treat it in abstraction from the thing of value. Thus, the law can recognize a claim involving an unjust transfer of value even though the defendant's right to the thing of value is not in question. A transfer of value (‘enrichment at another's expense’) occurs when one transfers a thing of value without the reciprocal receipt of a thing of equivalent value. The question then arises whether such a transfer is ‘unjust’, that is, whether circumstances are present that create an obligation to retransfer the value. This obligation arises if the transferor has given the value without donative intent and if the value has been accepted by the transferee as non-donatively given; the transferee cannot keep for free what was given and received non-gratuitously. Incontrovertible benefit and change of position affect acceptance as an obligation-creating condition, not enrichment as an aspect of transfer. Accordingly, an unjust enrichment situates the parties correlatively as transferor and transferee of what was not transferred gratuitously, thereby conforming to corrective justice. In accordance with Kant's conception of an in personam right as a right to the causality of another's will, the claimant's right is not to the value as such, but to having the value retransferred. This is the right to which the defendant's duty to make restitution is correlative.
Roger W. Shuy
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780195391329
- eISBN:
- 9780199866274
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195391329.003.0011
- Subject:
- Linguistics, Sociolinguistics / Anthropological Linguistics
This chapter deals with a videotaped speech given by the head of a large hair care products company. One person in the audience sued the speaker for defamatory statements he made in that speech and ...
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This chapter deals with a videotaped speech given by the head of a large hair care products company. One person in the audience sued the speaker for defamatory statements he made in that speech and for extensive quotations from him in a later magazine article. Clues from topic analysis showed that the speaker's intentions were on other matters, not the alleged defamation. He made no accusations, imperatives, laments, or complaints. His tone of voice contained no emotional characteristics of anger and his gesturing was consistently benign. The analysis also showed that the speaker's language exhibited no evidence of linguistic features that associate with a person having malicious intent and that the speaker's non‐native English skills led to at least some of the plaintiff's misperceptions of what was said. The speaker's use of verb tense, pronouns, and noun plurals supported this conclusion.Less
This chapter deals with a videotaped speech given by the head of a large hair care products company. One person in the audience sued the speaker for defamatory statements he made in that speech and for extensive quotations from him in a later magazine article. Clues from topic analysis showed that the speaker's intentions were on other matters, not the alleged defamation. He made no accusations, imperatives, laments, or complaints. His tone of voice contained no emotional characteristics of anger and his gesturing was consistently benign. The analysis also showed that the speaker's language exhibited no evidence of linguistic features that associate with a person having malicious intent and that the speaker's non‐native English skills led to at least some of the plaintiff's misperceptions of what was said. The speaker's use of verb tense, pronouns, and noun plurals supported this conclusion.
Alexander Somek
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199693375
- eISBN:
- 9780191729737
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199693375.003.0006
- Subject:
- Law, Philosophy of Law, EU Law
Systemic discrimination is the core concern of anti-discrimination law. Surprisingly, even direct discrimination can be understood to be a special case of indirect discrimination. In most instances, ...
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Systemic discrimination is the core concern of anti-discrimination law. Surprisingly, even direct discrimination can be understood to be a special case of indirect discrimination. In most instances, however, the observable impact of systemic discrimination is called ‘indirect’ or ‘disparate impact’ discrimination. Some groups end up worse off than others. The causal mechanisms may remain difficult to untangle. Yet, both categories are normatively deficient. Indirect discrimination is susceptible to justification on the ground of the proportionate pursuit of legitimate objectives. Determining the scope of legitimate objectives is not constrained by any distributive norm. Likewise, a case of direct discrimination cannot be established where the anti-discrimination norm does not declare a certain act to be an act of discrimination. The absence of a distributive norm comes to the fore, in this context, as a problem of identification. The emerging normative deficiency is the consequence of a deeper-seated antinomy of anti-discrimination law.Less
Systemic discrimination is the core concern of anti-discrimination law. Surprisingly, even direct discrimination can be understood to be a special case of indirect discrimination. In most instances, however, the observable impact of systemic discrimination is called ‘indirect’ or ‘disparate impact’ discrimination. Some groups end up worse off than others. The causal mechanisms may remain difficult to untangle. Yet, both categories are normatively deficient. Indirect discrimination is susceptible to justification on the ground of the proportionate pursuit of legitimate objectives. Determining the scope of legitimate objectives is not constrained by any distributive norm. Likewise, a case of direct discrimination cannot be established where the anti-discrimination norm does not declare a certain act to be an act of discrimination. The absence of a distributive norm comes to the fore, in this context, as a problem of identification. The emerging normative deficiency is the consequence of a deeper-seated antinomy of anti-discrimination law.
Thomas McFarland
- Published in print:
- 1992
- Published Online:
- October 2011
- ISBN:
- 9780198112532
- eISBN:
- 9780191670800
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198112532.003.0006
- Subject:
- Literature, 19th-century Literature and Romanticism
This chapter discusses Wordsworth and his stance as a prophet, despite futurity not being in the direction of his deepest poetic intuition. This prophetic stance rather than the stance of the artist ...
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This chapter discusses Wordsworth and his stance as a prophet, despite futurity not being in the direction of his deepest poetic intuition. This prophetic stance rather than the stance of the artist was congenial to Wordsworth because of the curious simplicity of his poetic intent.Less
This chapter discusses Wordsworth and his stance as a prophet, despite futurity not being in the direction of his deepest poetic intuition. This prophetic stance rather than the stance of the artist was congenial to Wordsworth because of the curious simplicity of his poetic intent.
Maureen Duffy and Len Sperry
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780195380019
- eISBN:
- 9780199932764
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195380019.003.0003
- Subject:
- Psychology, Social Psychology
This chapter provides comprehensive definitions for both school mobbing and workplace mobbing and distinguishes “mobbing” from the more commonly used term “bullying.” A conceptual framework for ...
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This chapter provides comprehensive definitions for both school mobbing and workplace mobbing and distinguishes “mobbing” from the more commonly used term “bullying.” A conceptual framework for understanding bullying and mobbing as occurring along a continuum related to the degree of involvement of group and organizational dynamics and to the severity of the negative consequences for the victims is presented. It is proposed that mobbing and bullying represent different forms of interpersonal aggression. Negative acts or aggressive behaviors directed toward a target, the duration of the negative acts, intent to do harm, power imbalance, organizational involvement, and negative consequences for victims related to health, welfare, and job are key definitional elements that are emphasized differentially depending upon whether the term “bullying” or “mobbing” is used. In this chapter, each of these key definitional elements is presented and examined.Less
This chapter provides comprehensive definitions for both school mobbing and workplace mobbing and distinguishes “mobbing” from the more commonly used term “bullying.” A conceptual framework for understanding bullying and mobbing as occurring along a continuum related to the degree of involvement of group and organizational dynamics and to the severity of the negative consequences for the victims is presented. It is proposed that mobbing and bullying represent different forms of interpersonal aggression. Negative acts or aggressive behaviors directed toward a target, the duration of the negative acts, intent to do harm, power imbalance, organizational involvement, and negative consequences for victims related to health, welfare, and job are key definitional elements that are emphasized differentially depending upon whether the term “bullying” or “mobbing” is used. In this chapter, each of these key definitional elements is presented and examined.
