Search Results

 The Plague of Dissent: And the Rise of Toleration

Chris Beneke

in Beyond Toleration: The Religious Origins of American Pluralism

The story opens in the first three decades of the 18th century when dissenters were still treated as political subversives and unorthodox doctrines still compared to contagious diseases. This chapter ... More

The story opens in the first three decades of the 18th century when dissenters were still treated as political subversives and unorthodox doctrines still compared to contagious diseases. This chapter briefly summarizes the long history of persecution in Europe and America, emphasizing the ideal of religious uniformity and the practice of religious localism. It then traces the emergence of toleration and the limits of the “divine right of private judgment”. The chapter concludes with an account of an early religious controversy involving Benjamin Franklin to underscore the relationship between the growth of the print trade and the expansion of religious autonomy.Less

The Property Rights School Solution: The Privatization Programme

Jean‐Marie Baland and Jean‐Philippe Platteau

in Halting Degradation of Natural Resources: Is There a Role for Rural Communities?

This chapter discusses the property rights school solution, which advocates the development of private property rights in a resource. It argues that private property rights do not necessarily promote ... More

This chapter discusses the property rights school solution, which advocates the development of private property rights in a resource. It argues that private property rights do not necessarily promote efficiency due to the absence of markets for certain resources, and imperfect markets. The impact of a privatization programme on income distribution is examined.Less

Private Enforcement: Growth, Backlash, and Spillovers

Daniel A. Crane

in The Institutional Structure of Antitrust Enforcement

The creation of a private right of action for damages has led to the significant decision to separate antitrust from corporate regulation. This conceptualizes a freestanding tort. This chapter ... More

The creation of a private right of action for damages has led to the significant decision to separate antitrust from corporate regulation. This conceptualizes a freestanding tort. This chapter explains that the allowance for private enforcement and the payment of damages was not entirely an American innovation instead it derived from the 1623 English decree of monopolies. There exists a significant difference between the private right of action created under the act of monopolies and that created under the Sherman Act. There is no limitation on Sherman's private right of action for damages included in trade agreements. The meaning of monopoly has now shifted from one describing an exclusive governmental grant to a more general meaning, which includes any body holding a strong market position.Less

The Right to have Rights as a ‘Place in the World’

Alison Kesby

in The Right to Have Rights: Citizenship, Humanity, and International Law

Chapter 1 examines the right to have rights in the context of the movement of people across borders. In the present international system of states, it is imperative that each person has a ‘place in ... More

Chapter 1 examines the right to have rights in the context of the movement of people across borders. In the present international system of states, it is imperative that each person has a ‘place in the world’, a place of lawful residence, and is not constantly shunted between states. The author examines how international law constructs the need for a ‘place in the world’ and the legal statuses by which individuals are emplaced (or misplaced) within it, namely the international legal status of nationality and, exceptionally, the humanity of international human rights law as inflected in rights such as the right to respect for family and private life.Less

Blowing Hot and Cold: The Role of Estoppel

Larissa Katz

in Civil Wrongs and Justice in Private Law

This chapter provides a detailed account of a particular kind of estoppel. It argues that the law knows of a doctrine of “formal estoppel,” as contrasted with other, more familiar, variants. Formal ... More

This chapter provides a detailed account of a particular kind of estoppel. It argues that the law knows of a doctrine of “formal estoppel,” as contrasted with other, more familiar, variants. Formal estoppel is an extension of estoppel by deed, whereby a person who makes a formal statement as to their rights is estopped from subsequently denying that statement. It explains the nature and normative significance of formal estoppel in terms of the personal authority wielded by right-holders over the determination of their rights. Part of what it means to have a private right, as this chapter shows, is for the right-holder to have personal authority in relation to others’ understanding of their rights. The exercise of this authority extends to public statements made in respect of an individual’s rights. Statements by right-holders are an important way in which clarity can be reached in what an individual owes another. Recognition of the authority and responsibility of right-holders for public statements as to their rights implies that the law should treat them as binding and final. Formal estoppel is, then, the means by which courts recognize a question as to private rights as having been irrevocably decided by the right-holder.Less

Liberty and Socialism

Alan Ryan

in The Making of Modern Liberalism

This chapter examines whether socialism may be more consistent with liberty than capitalism is. It concentrates on two issues, one related to property and the other to education. It first considers ... More

This chapter examines whether socialism may be more consistent with liberty than capitalism is. It concentrates on two issues, one related to property and the other to education. It first considers whether the abolition of private property rights in the means of production would in itself be an assault on freedom. Some defenders of socialism, as well as its critics, think of socialism as the search for justice, welfare, or fraternity at the expense of freedom—or “bourgeois freedoms.” The chapter proceeds by discussing whether a “no-ownership” regime would allow room for greater or lesser intellectual freedom, for a more or less libertarian educational system. It argues that serious socialism must be concerned with constitutional issues, and especially with issues of decentralization, on the one hand, and the protection of individuals against maladministration, on the other.Less

Violation of a Statutory Rule

Cees van Dam

in European Tort Law

Liability cannot only be based on the violation of an unwritten rule but also on the violation of written, statutory, rule. This chapter shows the relationship between criminal and administrative law ... More

Liability cannot only be based on the violation of an unwritten rule but also on the violation of written, statutory, rule. This chapter shows the relationship between criminal and administrative law (public law) on the one hand and tort law on the other. If a nursery uses banned pesticides, or an engineer installs wires contrary to health and safety rules, or someone builds a house without proper licences, they violate statutory duties. In principle, such a violation gives rise to liability for the damage caused which means that, in all their variety, statutory rules are an important basis for establishing liability. However, the legal systems in Europe deal with this basis for liability in different ways. This chapter looks at how violation of a statutory rule is treated in the legal systems of France, England, and Germany; liability for breach of European Community law, and private right of action.Less

Remedies and Rights

Hanoch Dagan

in Reconstructing American Legal Realism & Rethinking Private Law Theory

This chapter examines the relationship between rights and remedies. Remedies serve as instruments of rights enforcement as well as participate in the constitution of the rights they help enforce. ... More

This chapter examines the relationship between rights and remedies. Remedies serve as instruments of rights enforcement as well as participate in the constitution of the rights they help enforce. Although institutional reasons bring about certain gaps between the content of rights and the judicial response to their infringement, the constitutive role of remedies introduces significant subtlety into the domain of rights. Thus, the choice of different remedies, as well as the possibility of incorporating qualifications, limitations, and even obligations, allows private law to accommodate qualitative distinctions between different types of rights. The chapter also highlights the multiplicity of private law rights. By appreciating the multiplicity of private law and the normative value of the choices on which it relies, private law theory can better understand the order embedded in this complex legal mosaic and, perhaps, even contribute to its improvement.Less

Private Right: Marriage and Trade in Sexual Services

Helga Varden

in Sex, Love, and Gender: A Kantian Theory

This chapter provides a Kantian account of private right in relation to marriage and trade in sexual services. I argue that in addition to various non-ideal reasons and reasons based on equality that ... More

This chapter provides a Kantian account of private right in relation to marriage and trade in sexual services. I argue that in addition to various non-ideal reasons and reasons based on equality that make same-sex couples want to have a right to marry, there are ideal reasons why they want such a right. I also extend this argument to defend the right to marry for non-binary, symmetrical polyamorous partners. Regarding trade in sexual services, I maintain that Kant’s account of bodily rights can explain why one never gets an enforceable right to have sex with another person even if one has a right to get some of the money back if a contract is broken. Importantly, these arguments hold regardless of what someone may think from the point of view of virtue or religion.Less

To Create a Power to Refuse: The Rise of a Jurisprudence of Advisory Opinions

Mel A. Topf

in A Doubtful and Perilous Experiment: Advisory Opinions, State Constitutions, and Judicial Supremacy

This chapter highlights the advising justices’ extraordinary, probably unique, animosity toward their advisory opinion duty, expressing an often open reluctance to advise, even when required by the ... More

This chapter highlights the advising justices’ extraordinary, probably unique, animosity toward their advisory opinion duty, expressing an often open reluctance to advise, even when required by the state’s constitution, and sometimes expressing outright hostility toward the duty. This chapter shows that it was out of this animosity that a jurisprudence of advisory opinions developed. This chapter tracks the history of this development and its relation to the animosity in all the advisory opinion states. It then reviews the chief principles and elements of that jurisprudence, including the nonbinding doctrine (advisory opinions do not have the legal force of a binding decision) and the chief restrictions on when the justices will advise, and the interpretive standards they will apply—for example, their strict construction of the advisory opinion provisions and their prohibition on advising on private rights.Less

A Private Right Conferred Directly by EU Trade Mark Law: An Analysis of the Concept of ‘Distinctiveness’ under EU Law

Rosa Greaves

in From Single Market to Economic Union: Essays in Memory of John A. Usher

This chapter examines the concept of ‘distinctiveness’, as it is written under EU law. It first identifies the basic rules about the way ‘distinctiveness’ can be established. It briefly discusses the ... More

This chapter examines the concept of ‘distinctiveness’, as it is written under EU law. It first identifies the basic rules about the way ‘distinctiveness’ can be established. It briefly discusses the solutions used by the European Court of Justice (ECJ) from resolving the national private law rights of trade mark owners with EU law to adopting the European Union Trade Mark (EUTM) Regulation. It reveals that under EU law, a mark should be considered as ‘distinctive’ before it can be registered as a trade mark. The rest of chapter studies cases that used tests that help determine the ‘distinctiveness’ of combined words.Less

Conclusion

David Schorr

in The Colorado Doctrine

This concluding chapter examines several aspects of the relationship between the early history of Colorado water law and property theory. It first reviews the distributive-justice principles ... More

This concluding chapter examines several aspects of the relationship between the early history of Colorado water law and property theory. It first reviews the distributive-justice principles reflected in the appropriation doctrine. It then examines the classic claim that the adoption of the prior appropriation regime was a transition to a system of more specified private-property rights, driven by considerations of economic efficiency. Next, it looks at other economic explanations for the transition in property rights, especially those highlighting the inefficient institutions that may result from interest group pressure. The fourth section considers some practical, modern implications of this study. Finally, the insights gained into the history of the Colorado Doctrine are used to question conventional classifications of property regimes.Less

International Human Rights and Intangible Cultural Heritage

Lucas Lixinski

in Intangible Cultural Heritage in International Law

This chapter is the first in the second part of the book, focusing on remedies for ICH safeguarding. The chapter focuses specifically on the potentials and pitfalls of using international human ... More

This chapter is the first in the second part of the book, focusing on remedies for ICH safeguarding. The chapter focuses specifically on the potentials and pitfalls of using international human rights law to safeguard intangible heritage. The chapter argues that, while human rights law is a useful tool, to the extent the protection of intangible heritage is often justified in relation to cultural identity, it disregards the important group dimension of ICH. It looks at case law from regional courts and UN treaty bodies with respect to cultural identity issues to enquire whether international human rights adjudication can be used as a means to redress harm to intangible cultural heritage. Cultural identity issues are dealt with not only as an autonomous right, but also with respect to rights such as freedom of expression, freedom of religion, equality, and the right to private and family life, among others.Less

Recognition, Rights, and Reasonable Expectations

Roxana Banu

in Nineteenth Century Perspectives on Private International Law

This chapter provides an analysis of the way in which rights theories in private international law are constructed depending on whether one takes the state or the individual as the point of reference ... More

This chapter provides an analysis of the way in which rights theories in private international law are constructed depending on whether one takes the state or the individual as the point of reference and whether one portrays an individualistic or a relational image of the transnational agent. It outlines the differences between early nineteenth-century individualistic theories, late nineteenth century state-centered rights theories, and the nineteenth-century relational internationalist perspective introduced in Chapter 2. The chapter suggests that historically the misrecognition of individuals and their pleas for justice was a corollary to the state-centered internationalist position under the private-public international law association. It further argues that relational internationalist theorists tried to create a cross-reference between individual reasonable expectations and larger sociopolitical considerations. Such theories emphasized a spectrum from liberty to social responsibility, based on their differentiation and analysis of the various types of private law relationships in the transnational realm.Less

The Political Backlash

Ilya Somin

in The Grasping Hand: "Kelo v. City of New London" and the Limits of Eminent Domain

This chapter describes the massive political backlash generated by the Kelodecision, which was in many ways greater than that which resulted from any other modern Supreme Court decision. Polls showed ... More

This chapter describes the massive political backlash generated by the Kelodecision, which was in many ways greater than that which resulted from any other modern Supreme Court decision. Polls showed that over 80% of the public opposed the ruling, a sentiment that cut across racial, partisan, and ideological lines. A record 45 states adopted eminent domain reform laws in the wake of the decision, as did the federal government. But while some of these laws were strong and effective, a majority provided little if any meaningful new protection for property owners. Many banned takings for “economic development,” but continued to permit very similar “blight” condemnations, under definitions of blight so broad that virtually any area could be declared blighted and subject to condemnation. However, state reforms enacted by referendum tended to be much stronger than those enacted through the regular legislative process.Less

The Political Backlash

Ilya Somin

in The Grasping Hand: 'Kelo v. City of New London' and the Limits of Eminent Domain

This chapter describes the massive political backlash generated by the Kelo decision, which was in many ways greater than that which resulted from any other modern Supreme Court decision. Polls ... More

This chapter describes the massive political backlash generated by the Kelo decision, which was in many ways greater than that which resulted from any other modern Supreme Court decision. Polls showed that over 80% of the public opposed the ruling, a sentiment that cut across racial, partisan, and ideological lines. A record 45 states adopted eminent domain reform laws in the wake of the decision, as did the federal government. But while some of these laws were strong and effective, a majority provided little if any meaningful new protection for property owners. Many banned takings for “economic development,” but continued to permit very similar “blight” condemnations, under definitions of blight so broad that virtually any area could be declared blighted and subject to condemnation. However, state reforms enacted by referendum tended to be much stronger than those enacted through the regular legislative process.Less

Back To Socialist Basics

G. A. Cohen

Michael Otsuka (ed.)

in On the Currency of Egalitarian Justice, and Other Essays in Political Philosophy

This chapter argues that to have money is (pro tanto) to have liberty. The richer you are, the more courses of action are open to you, which is to say that you are freer than you would otherwise be. ... More

This chapter argues that to have money is (pro tanto) to have liberty. The richer you are, the more courses of action are open to you, which is to say that you are freer than you would otherwise be. Accordingly, whoever receives money as a result of redistribution thereby enjoys an enhancement of her liberty, albeit at the expense of the liberty of the person from whom it is taken, but with the net result for liberty as such entirely moot. Taxation restricts not liberty as such, but private property rights, both in external things and in one's own labor power. Whether or not such rights are deeply founded, it is ideological hocus-pocus to identify them with liberty as such, and it is entirely alien to traditional socialist belief so to construe them.Less

Green Metaphors: Language, Land, and Law in Takings Debates

Laura J. Hatcher

in Law and Geography

A conservative movement in the United States which was mainly concerned with the protection of private property rights emerged during the 1970s and was able to attain grassroots support a decade ... More

A conservative movement in the United States which was mainly concerned with the protection of private property rights emerged during the 1970s and was able to attain grassroots support a decade after. As there may have been people who were not without wealth and political significance such as James Barker and Richard Epstein who actively participated and were involved with such a movement, the chapter also observes that this movement possessed a grassroots element whose basis relied much on the western part of the United States. Although that description may entail difficulty in setting such situations within the social-movement literature, this description also presents the opportunity to examine the relationships between ideology-producing ideas, material interests, and actions. This chapter illustrates a framework for analyzing the property rights movement that involves a constitutive analysis of various pastoral ideas and legal forms.Less