Jonathan Wolff and Avner De-Shalit
- Published in print:
- 2007
- Published Online:
- May 2007
- ISBN:
- 9780199278268
- eISBN:
- 9780191707902
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199278268.003.0011
- Subject:
- Political Science, Political Theory
Social policies designed to help people by securing a particular functioning might harm them by risking other functionings. One example is housing, where policies of slum clearance and rehousing, ...
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Social policies designed to help people by securing a particular functioning might harm them by risking other functionings. One example is housing, where policies of slum clearance and rehousing, while improving people's housing conditions, disrupt their communities and social networks, often leading to severe problems in affiliation, mental health, and the ability to cope. Another example concerns means tested benefits, which while well-intentioned can be experienced as humiliating and stigmatizing, thereby risking a sense of autonomy and self esteem. This chapter argues that policy makers need to consider the total effects of their interventions, rather than simply concerning themselves with only their own policy areas. Remedies of ‘status enhancement’ are recommended, which improve an individual's genuine opportunities for secure functionings by changing the world around them, rather than identifying particular individuals as objects in need of help.Less
Social policies designed to help people by securing a particular functioning might harm them by risking other functionings. One example is housing, where policies of slum clearance and rehousing, while improving people's housing conditions, disrupt their communities and social networks, often leading to severe problems in affiliation, mental health, and the ability to cope. Another example concerns means tested benefits, which while well-intentioned can be experienced as humiliating and stigmatizing, thereby risking a sense of autonomy and self esteem. This chapter argues that policy makers need to consider the total effects of their interventions, rather than simply concerning themselves with only their own policy areas. Remedies of ‘status enhancement’ are recommended, which improve an individual's genuine opportunities for secure functionings by changing the world around them, rather than identifying particular individuals as objects in need of help.
Chester Brown
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199206506
- eISBN:
- 9780191709708
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199206506.001.0001
- Subject:
- Law, Public International Law
The proliferation of international courts and tribunals has given rise to several new issues affecting the administration of international justice. This book makes a significant contribution to ...
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The proliferation of international courts and tribunals has given rise to several new issues affecting the administration of international justice. This book makes a significant contribution to understanding the impact of this proliferation by addressing one important question: namely, whether international courts and tribunals are increasingly adopting common approaches to questions of procedure and remedies. The central argument is that there is an increasing commonality in the practice of international courts and tribunals to the application of rules concerning these issues, and that this represents the emergence of a common law of international adjudication. This book examines this question by considering several key issues relating to procedure and remedies, and analyses relevant international jurisprudence to demonstrate that there is substantial commonality. It then looks at why international courts are increasingly adopting common approaches to such questions, and why a greater degree of commonality may be found with respect to some issues rather than others. In doing so, light is shed on the methods adopted by international courts to engage in the cross-fertilization of legal principles. The emergence of a common law of international adjudication has important practical and theoretical implications, as it suggests that international courts can also devise common approaches to the challenges that they face in the age of proliferation. It also suggests that international courts do not generally operate as self-contained regimes, but rather that they regard themselves as forming part of a community of international courts, therefore having positive implications for the development of the international legal system.Less
The proliferation of international courts and tribunals has given rise to several new issues affecting the administration of international justice. This book makes a significant contribution to understanding the impact of this proliferation by addressing one important question: namely, whether international courts and tribunals are increasingly adopting common approaches to questions of procedure and remedies. The central argument is that there is an increasing commonality in the practice of international courts and tribunals to the application of rules concerning these issues, and that this represents the emergence of a common law of international adjudication. This book examines this question by considering several key issues relating to procedure and remedies, and analyses relevant international jurisprudence to demonstrate that there is substantial commonality. It then looks at why international courts are increasingly adopting common approaches to such questions, and why a greater degree of commonality may be found with respect to some issues rather than others. In doing so, light is shed on the methods adopted by international courts to engage in the cross-fertilization of legal principles. The emergence of a common law of international adjudication has important practical and theoretical implications, as it suggests that international courts can also devise common approaches to the challenges that they face in the age of proliferation. It also suggests that international courts do not generally operate as self-contained regimes, but rather that they regard themselves as forming part of a community of international courts, therefore having positive implications for the development of the international legal system.
Jon L. Mills
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780195367355
- eISBN:
- 9780199867400
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195367355.003.0008
- Subject:
- Law, Human Rights and Immigration
A central lesson of this book establishes that many forces combine to infringe on an individual's personal privacy. These forces, including the government, the press, private corporations, and other ...
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A central lesson of this book establishes that many forces combine to infringe on an individual's personal privacy. These forces, including the government, the press, private corporations, and other citizens are, however, responding to the security, voyeuristic, and personal convenience desires of society. It is, therefore, important that citizens make informed personal choices and, as informed citizens, advocate more effective and comprehensive privacy policies.Less
A central lesson of this book establishes that many forces combine to infringe on an individual's personal privacy. These forces, including the government, the press, private corporations, and other citizens are, however, responding to the security, voyeuristic, and personal convenience desires of society. It is, therefore, important that citizens make informed personal choices and, as informed citizens, advocate more effective and comprehensive privacy policies.
Rohit De
- Published in print:
- 2018
- Published Online:
- May 2019
- ISBN:
- 9780691174433
- eISBN:
- 9780691185132
- Item type:
- book
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691174433.001.0001
- Subject:
- History, Indian History
It has long been contended that the Indian Constitution of 1950, a document in English created by elite consensus, has had little influence on India's greater population. Drawing upon the previously ...
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It has long been contended that the Indian Constitution of 1950, a document in English created by elite consensus, has had little influence on India's greater population. Drawing upon the previously unexplored records of the Supreme Court of India, this book upends this narrative and shows how the Constitution actually transformed the daily lives of citizens in profound and lasting ways. This remarkable legal process was led by individuals on the margins of society, and the book looks at how drinkers, smugglers, petty vendors, butchers, and prostitutes—all despised minorities—shaped the constitutional culture. The Constitution came alive in the popular imagination so much that ordinary people attributed meaning to its existence, took recourse to it, and argued with it. Focusing on the use of constitutional remedies by citizens against new state regulations seeking to reshape the society and economy, the book illustrates how laws and policies were frequently undone or renegotiated from below using the state's own procedures. It examines four important cases that set legal precedents: a Parsi journalist's contestation of new alcohol prohibition laws, Marwari petty traders' challenge to the system of commodity control, Muslim butchers' petition against cow protection laws, and sex workers' battle to protect their right to practice prostitution. Exploring how the Indian Constitution of 1950 enfranchised the largest population in the world, the book considers the ways that ordinary citizens produced, through litigation, alternative ethical models of citizenship.Less
It has long been contended that the Indian Constitution of 1950, a document in English created by elite consensus, has had little influence on India's greater population. Drawing upon the previously unexplored records of the Supreme Court of India, this book upends this narrative and shows how the Constitution actually transformed the daily lives of citizens in profound and lasting ways. This remarkable legal process was led by individuals on the margins of society, and the book looks at how drinkers, smugglers, petty vendors, butchers, and prostitutes—all despised minorities—shaped the constitutional culture. The Constitution came alive in the popular imagination so much that ordinary people attributed meaning to its existence, took recourse to it, and argued with it. Focusing on the use of constitutional remedies by citizens against new state regulations seeking to reshape the society and economy, the book illustrates how laws and policies were frequently undone or renegotiated from below using the state's own procedures. It examines four important cases that set legal precedents: a Parsi journalist's contestation of new alcohol prohibition laws, Marwari petty traders' challenge to the system of commodity control, Muslim butchers' petition against cow protection laws, and sex workers' battle to protect their right to practice prostitution. Exploring how the Indian Constitution of 1950 enfranchised the largest population in the world, the book considers the ways that ordinary citizens produced, through litigation, alternative ethical models of citizenship.
Dinah Shelton
- Published in print:
- 2006
- Published Online:
- January 2010
- ISBN:
- 9780199207534
- eISBN:
- 9780191708794
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199207534.001.0001
- Subject:
- Law, Human Rights and Immigration
This book provides a comprehensive treatment of remedies for human rights violations and reviews the jurisprudence of international tribunals on these violations. It provides a theoretical framework ...
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This book provides a comprehensive treatment of remedies for human rights violations and reviews the jurisprudence of international tribunals on these violations. It provides a theoretical framework and a practical guide on human rights law. This edition incorporates a new chapter on historical injustices. All the cases of the Inter-American and European Courts of Human Rights are included, as well as decisions of the African and Inter-American Commissions on Human Rights, UN bodies, the European Court of Justice, international administrative tribunals, and national courts applying human rights law.Less
This book provides a comprehensive treatment of remedies for human rights violations and reviews the jurisprudence of international tribunals on these violations. It provides a theoretical framework and a practical guide on human rights law. This edition incorporates a new chapter on historical injustices. All the cases of the Inter-American and European Courts of Human Rights are included, as well as decisions of the African and Inter-American Commissions on Human Rights, UN bodies, the European Court of Justice, international administrative tribunals, and national courts applying human rights law.
Petra Butler
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780197265376
- eISBN:
- 9780191760426
- Item type:
- chapter
- Publisher:
- British Academy
- DOI:
- 10.5871/bacad/9780197265376.003.0011
- Subject:
- Law, Human Rights and Immigration
This chapter discusses the New Zealand courts' jurisprudence in regard to the interpretative provisions — sections 4, 5, and 6 — of the New Zealand Bill of Rights Act 1990. It not only gives an ...
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This chapter discusses the New Zealand courts' jurisprudence in regard to the interpretative provisions — sections 4, 5, and 6 — of the New Zealand Bill of Rights Act 1990. It not only gives an overview of the relevant New Zealand case law but also compares the courts' approaches to those of their UK counterparts, in particular the UK Supreme Court (formerly, the House of Lords) in regard to section 3 of the UK Human Rights Act 1998. It is argued that the perceived difference in the approaches can be explained by different contexts rather than different methodology. The chapter thereby questions the view held in New Zealand that the UK courts, and especially the Supreme Court, are more activist than the New Zealand courts.Less
This chapter discusses the New Zealand courts' jurisprudence in regard to the interpretative provisions — sections 4, 5, and 6 — of the New Zealand Bill of Rights Act 1990. It not only gives an overview of the relevant New Zealand case law but also compares the courts' approaches to those of their UK counterparts, in particular the UK Supreme Court (formerly, the House of Lords) in regard to section 3 of the UK Human Rights Act 1998. It is argued that the perceived difference in the approaches can be explained by different contexts rather than different methodology. The chapter thereby questions the view held in New Zealand that the UK courts, and especially the Supreme Court, are more activist than the New Zealand courts.
Tracey A. Sowerby
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199584635
- eISBN:
- 9780191723162
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199584635.003.0003
- Subject:
- History, British and Irish Early Modern History
This chapter focuses on Morison's polemical tracts against the Pilgrimage of Grace (the Remedy for Sedition and Lamentation) and three tracts aimed at an international audience (the Apomaxis and the ...
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This chapter focuses on Morison's polemical tracts against the Pilgrimage of Grace (the Remedy for Sedition and Lamentation) and three tracts aimed at an international audience (the Apomaxis and the General Council tracts). Previous studies of Morison's propaganda tracts have considered them primarily as obedience literature. In contrast, this study contextualizes the tracts and explores their rhetoric, demonstrating that while obedience was a central theme in Henry VIII's propaganda, the tracts' message was rarely unilateral. Morison's defence of Henry's marital and ecclesiastical policies and justification of the king's treatment of opponents in the relatively neglected Apomaxis is analysed. Morison is established as the author of two official tracts written against a General Council summoned by the pope, which Henry believed would condemn him and his church. These tracts are discussed in the context of English foreign policy, particularly relations with the Schmalkaldic League, and situated within the broader polemical campaign.Less
This chapter focuses on Morison's polemical tracts against the Pilgrimage of Grace (the Remedy for Sedition and Lamentation) and three tracts aimed at an international audience (the Apomaxis and the General Council tracts). Previous studies of Morison's propaganda tracts have considered them primarily as obedience literature. In contrast, this study contextualizes the tracts and explores their rhetoric, demonstrating that while obedience was a central theme in Henry VIII's propaganda, the tracts' message was rarely unilateral. Morison's defence of Henry's marital and ecclesiastical policies and justification of the king's treatment of opponents in the relatively neglected Apomaxis is analysed. Morison is established as the author of two official tracts written against a General Council summoned by the pope, which Henry believed would condemn him and his church. These tracts are discussed in the context of English foreign policy, particularly relations with the Schmalkaldic League, and situated within the broader polemical campaign.
Margaret Jane Radin
- Published in print:
- 2012
- Published Online:
- October 2017
- ISBN:
- 9780691155333
- eISBN:
- 9781400844838
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691155333.003.0011
- Subject:
- Law, Company and Commercial Law
This chapter explains how abusive boilerplate could either be treated as a defective product, or else regulated under a new tort of intentional deprivation of basic legal rights. It argues that we ...
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This chapter explains how abusive boilerplate could either be treated as a defective product, or else regulated under a new tort of intentional deprivation of basic legal rights. It argues that we should put boilerplate rights deletion schemes into the legal category—tort law—in which we can actually consider them as products, instead of considering them one at a time as a contract between two individuals. It also highlights boundary the fuzzy and shifting boundary between contracts and torts by focusing on doctrinal border areas such as fraud or misrepresentation, bad faith breach of contract, and warranty. A case study involving implied warranty of habitability in residential leases is presented. The chapter concludes with a comparison of tort and contract remedies, along with the common-law economic loss doctrine.Less
This chapter explains how abusive boilerplate could either be treated as a defective product, or else regulated under a new tort of intentional deprivation of basic legal rights. It argues that we should put boilerplate rights deletion schemes into the legal category—tort law—in which we can actually consider them as products, instead of considering them one at a time as a contract between two individuals. It also highlights boundary the fuzzy and shifting boundary between contracts and torts by focusing on doctrinal border areas such as fraud or misrepresentation, bad faith breach of contract, and warranty. A case study involving implied warranty of habitability in residential leases is presented. The chapter concludes with a comparison of tort and contract remedies, along with the common-law economic loss doctrine.
DINAH SHELTON
- Published in print:
- 2006
- Published Online:
- January 2010
- ISBN:
- 9780199207534
- eISBN:
- 9780191708794
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199207534.003.0016
- Subject:
- Law, Human Rights and Immigration
One of the most important legal developments of the modern era, both nationally and internationally, has been the opening of avenues of complaint for private citizens against oppressive action by ...
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One of the most important legal developments of the modern era, both nationally and internationally, has been the opening of avenues of complaint for private citizens against oppressive action by government agents and agencies and the affording of remedies when violations are found. The right of access to judicial remedies is widely guaranteed in international human rights treaties and can be considered as part of the corpus of the customary international law of human rights. Remedies not only provide redress for the individual victim, but they serve the community interest in sanctioning the perpetrator and deterring future violations by the same or other wrongdoers. They thus serve the rule of law at all levels of society. The nature and scope of remedies is generally consistent throughout the world.Less
One of the most important legal developments of the modern era, both nationally and internationally, has been the opening of avenues of complaint for private citizens against oppressive action by government agents and agencies and the affording of remedies when violations are found. The right of access to judicial remedies is widely guaranteed in international human rights treaties and can be considered as part of the corpus of the customary international law of human rights. Remedies not only provide redress for the individual victim, but they serve the community interest in sanctioning the perpetrator and deterring future violations by the same or other wrongdoers. They thus serve the rule of law at all levels of society. The nature and scope of remedies is generally consistent throughout the world.
Eyal Zamir and Barak Medina
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780195372168
- eISBN:
- 9780199776078
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195372168.001.0001
- Subject:
- Law, Philosophy of Law
Economic analysis of law is a powerful analytical methodology. However, as a purely consequentialist approach, which determines the desirability of acts and rules solely by assessing the ...
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Economic analysis of law is a powerful analytical methodology. However, as a purely consequentialist approach, which determines the desirability of acts and rules solely by assessing the goodness of their outcomes, standard cost-benefit analysis (CBA) is normatively objectionable. Moderate deontology prioritizes such values as autonomy, basic liberties, truth-telling, and promise-keeping over the promotion of good outcomes. It holds that there are constraints on promoting the good. Such constraints may be overridden only if enough good (or bad) is at stake. While moderate deontology conforms to prevailing moral intuitions and legal doctrines, it is arguably lacking in methodological rigor and precision. This book examines the possibility of combining economic methodology and deontological morality through explicit and direct incorporation of moral constraints (and options) into economic models. It argues that the normative flaws of economic analysis can be rectified without relinquishing its methodological advantages, and that moral constraints can be formalized so as to make their analysis more rigorous. The book discusses various substantive and methodological choices involved in modeling deontological constraints. It proposes to determine the permissibility of any act or rule infringing a deontological constraint by means of mathematical threshold functions. The book presents the general structure of threshold functions, analyzes their elements, and addresses possible objections to this proposal. It then illustrates the implementation of constrained CBA in several legal fields, including the fight against terrorism, freedom of speech, anti-discrimination law, contract law, and legal paternalism.Less
Economic analysis of law is a powerful analytical methodology. However, as a purely consequentialist approach, which determines the desirability of acts and rules solely by assessing the goodness of their outcomes, standard cost-benefit analysis (CBA) is normatively objectionable. Moderate deontology prioritizes such values as autonomy, basic liberties, truth-telling, and promise-keeping over the promotion of good outcomes. It holds that there are constraints on promoting the good. Such constraints may be overridden only if enough good (or bad) is at stake. While moderate deontology conforms to prevailing moral intuitions and legal doctrines, it is arguably lacking in methodological rigor and precision. This book examines the possibility of combining economic methodology and deontological morality through explicit and direct incorporation of moral constraints (and options) into economic models. It argues that the normative flaws of economic analysis can be rectified without relinquishing its methodological advantages, and that moral constraints can be formalized so as to make their analysis more rigorous. The book discusses various substantive and methodological choices involved in modeling deontological constraints. It proposes to determine the permissibility of any act or rule infringing a deontological constraint by means of mathematical threshold functions. The book presents the general structure of threshold functions, analyzes their elements, and addresses possible objections to this proposal. It then illustrates the implementation of constrained CBA in several legal fields, including the fight against terrorism, freedom of speech, anti-discrimination law, contract law, and legal paternalism.
Anne van Aaken
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199589104
- eISBN:
- 9780191595455
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199589104.003.0023
- Subject:
- Law, Constitutional and Administrative Law, Public International Law
International investment law creates an international level of review for (illegal) national regulations and laws and the conduct of administrative entities for foreign investors. It is state ...
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International investment law creates an international level of review for (illegal) national regulations and laws and the conduct of administrative entities for foreign investors. It is state liability law for foreign investors. Whereas in national law, a right holder needs to take all (usual administrative and judicial) steps to have the illegality of an act reviewed (primary remedies), in investment law, the investor often has immediate access to courts without the exhaustion of local remedies and may immediately claim damages (secondary remedies). This difference justifies a functional comparison of national state liability regimes with international investment law. What are the rationales discussed for the different remedies found in national state liability law and in investment law? And do they have a rational justification in general and depending on the case in specific circumstances?Less
International investment law creates an international level of review for (illegal) national regulations and laws and the conduct of administrative entities for foreign investors. It is state liability law for foreign investors. Whereas in national law, a right holder needs to take all (usual administrative and judicial) steps to have the illegality of an act reviewed (primary remedies), in investment law, the investor often has immediate access to courts without the exhaustion of local remedies and may immediately claim damages (secondary remedies). This difference justifies a functional comparison of national state liability regimes with international investment law. What are the rationales discussed for the different remedies found in national state liability law and in investment law? And do they have a rational justification in general and depending on the case in specific circumstances?
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/9780199258826.003.0013
- Subject:
- Law, Legal History
This chapter discusses contractual remedies in the 19th century. Topics covered include penalties and liquidated damages, quantum meruit and expectation damages, remoteness of damage, and specific ...
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This chapter discusses contractual remedies in the 19th century. Topics covered include penalties and liquidated damages, quantum meruit and expectation damages, remoteness of damage, and specific performance.Less
This chapter discusses contractual remedies in the 19th century. Topics covered include penalties and liquidated damages, quantum meruit and expectation damages, remoteness of damage, and specific performance.
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/9780199258826.003.0014
- Subject:
- Law, Legal History
This chapter on restitutionary remedies in the 19th century covers waiver of tort, mistaken payments, failure of consideration, money paid, equity, common law, and the redefinition of ...
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This chapter on restitutionary remedies in the 19th century covers waiver of tort, mistaken payments, failure of consideration, money paid, equity, common law, and the redefinition of ‘quasi-contract’.Less
This chapter on restitutionary remedies in the 19th century covers waiver of tort, mistaken payments, failure of consideration, money paid, equity, common law, and the redefinition of ‘quasi-contract’.
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/9780199258826.003.0025
- Subject:
- Law, Legal History
While there had always been problems caused by smoke, or by polluted water, noise or overcrowding, they were significantly magnified in the 19th century as a result of rapid industrialization and ...
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While there had always been problems caused by smoke, or by polluted water, noise or overcrowding, they were significantly magnified in the 19th century as a result of rapid industrialization and urbanization. All cities suffered severely from coal smoke emitted by domestic fires and steam engines. Many suffered from poisonous chemical fumes emitted by new industries such as alkali production and copper smelting. Urban development also brought other irritants, as when brick kilns filled residential areas with smoke when new houses were built, or when new buildings blocked the light of established householders. Although the major environmental problems caused by urbanization could ultimately only be dealt with by legislation and regulation, the common law continued to play an important role. To begin with, those responsible for nuisances could be indicted. To be subject to prosecution, the nuisance had to be a general annoyance to the public, rather than a harm to particular individuals only. This chapter discusses cases relating to the right to light, water rights, smoke and noise, and remedies.Less
While there had always been problems caused by smoke, or by polluted water, noise or overcrowding, they were significantly magnified in the 19th century as a result of rapid industrialization and urbanization. All cities suffered severely from coal smoke emitted by domestic fires and steam engines. Many suffered from poisonous chemical fumes emitted by new industries such as alkali production and copper smelting. Urban development also brought other irritants, as when brick kilns filled residential areas with smoke when new houses were built, or when new buildings blocked the light of established householders. Although the major environmental problems caused by urbanization could ultimately only be dealt with by legislation and regulation, the common law continued to play an important role. To begin with, those responsible for nuisances could be indicted. To be subject to prosecution, the nuisance had to be a general annoyance to the public, rather than a harm to particular individuals only. This chapter discusses cases relating to the right to light, water rights, smoke and noise, and remedies.
Stephanie M. Stern and Daphna Lewinsohn-Zamir
- Published in print:
- 2020
- Published Online:
- September 2020
- ISBN:
- 9781479835683
- eISBN:
- 9781479857623
- Item type:
- book
- Publisher:
- NYU Press
- DOI:
- 10.18574/nyu/9781479835683.001.0001
- Subject:
- Psychology, Social Psychology
The Psychology of Property Law considers how research in psychology offers new perspectives on property rules and doctrines, and suggests avenues of reform. The book explains how assumptions about ...
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The Psychology of Property Law considers how research in psychology offers new perspectives on property rules and doctrines, and suggests avenues of reform. The book explains how assumptions about human judgment, decision making, and behavior have shaped different property laws and examines to what extent these assumptions are supported by the research. Employing key findings from psychology, the book considers whether property law’s goals and justifications for various property doctrines could be achieved more successfully with different rules. In addition, the book highlights property laws and conflicts that offer productive areas for further behaviorally informed research. The book critically addresses several topics from property law for which psychology has a great deal to contribute. These include ownership and possession, legal protections for residential and personal property, takings of property by the state, redistribution through property law, real estate transactions, and discrimination in housing and land use. Turning to remedies, the book discusses how psychology can inform legal debates over the desirability of property rules versus liability rules, and in-kind remedies versus monetary ones.Less
The Psychology of Property Law considers how research in psychology offers new perspectives on property rules and doctrines, and suggests avenues of reform. The book explains how assumptions about human judgment, decision making, and behavior have shaped different property laws and examines to what extent these assumptions are supported by the research. Employing key findings from psychology, the book considers whether property law’s goals and justifications for various property doctrines could be achieved more successfully with different rules. In addition, the book highlights property laws and conflicts that offer productive areas for further behaviorally informed research. The book critically addresses several topics from property law for which psychology has a great deal to contribute. These include ownership and possession, legal protections for residential and personal property, takings of property by the state, redistribution through property law, real estate transactions, and discrimination in housing and land use. Turning to remedies, the book discusses how psychology can inform legal debates over the desirability of property rules versus liability rules, and in-kind remedies versus monetary ones.
Louis Kaplow
- Published in print:
- 2013
- Published Online:
- October 2017
- ISBN:
- 9780691158624
- eISBN:
- 9781400846078
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691158624.003.0019
- Subject:
- Economics and Finance, Economic History
This chapter links three arguments offered in favor of the traditional view to the foregoing analysis. One argument asserts a difficulty in attacking purely interdependent behavior because such would ...
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This chapter links three arguments offered in favor of the traditional view to the foregoing analysis. One argument asserts a difficulty in attacking purely interdependent behavior because such would involve commanding firms to behave irrationally. Another objection is that making price elevation by oligopolists illegal is inconsistent with the legality of price elevation by monopolists. Third, it is argued that remedies, particularly injunctive relief, directed at price elevation are problematic because they amount to price regulation. The chapter analyzes each of these arguments in turn and provides counterpoints to these three claims. It also makes further arguments on the direct, economically based approach.Less
This chapter links three arguments offered in favor of the traditional view to the foregoing analysis. One argument asserts a difficulty in attacking purely interdependent behavior because such would involve commanding firms to behave irrationally. Another objection is that making price elevation by oligopolists illegal is inconsistent with the legality of price elevation by monopolists. Third, it is argued that remedies, particularly injunctive relief, directed at price elevation are problematic because they amount to price regulation. The chapter analyzes each of these arguments in turn and provides counterpoints to these three claims. It also makes further arguments on the direct, economically based approach.
Solène Rowan
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199606603
- eISBN:
- 9780191738722
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199606603.001.0001
- Subject:
- Law, Company and Commercial Law
The book examines the commitment of English law to the protection of contractual performance. It considers specific remedies, termination, compensatory damages, gain-based monetary awards, punitive ...
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The book examines the commitment of English law to the protection of contractual performance. It considers specific remedies, termination, compensatory damages, gain-based monetary awards, punitive damages and contractually negotiated remedies. It also looks forward by considering how the protection of performance could be strengthened in the future. English law remedies for breach of contract are considered through the comparative study of French law, which offers significant scope for informative contrast. It sheds new light on contractual remedies in both jurisdictions and challenges fundamental aspects of English law in this area. The book covers recent academic debates and developments in the case law on both sides of the Channel. It also comments on aspects of two recent far-reaching reform projects relating to the French Civil code and of the Draft Common Frame of Reference.Less
The book examines the commitment of English law to the protection of contractual performance. It considers specific remedies, termination, compensatory damages, gain-based monetary awards, punitive damages and contractually negotiated remedies. It also looks forward by considering how the protection of performance could be strengthened in the future. English law remedies for breach of contract are considered through the comparative study of French law, which offers significant scope for informative contrast. It sheds new light on contractual remedies in both jurisdictions and challenges fundamental aspects of English law in this area. The book covers recent academic debates and developments in the case law on both sides of the Channel. It also comments on aspects of two recent far-reaching reform projects relating to the French Civil code and of the Draft Common Frame of Reference.
Rafal Zakrzewski
- Published in print:
- 2005
- Published Online:
- March 2012
- ISBN:
- 9780199278756
- eISBN:
- 9780191699993
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199278756.001.0001
- Subject:
- Law, Constitutional and Administrative Law
This book is about the law of remedies. It establishes the boundaries of this discrete area of law and provides a new classification of remedies. The book first examines the difficulties of the term ...
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This book is about the law of remedies. It establishes the boundaries of this discrete area of law and provides a new classification of remedies. The book first examines the difficulties of the term ‘remedy’, and identifies the most robust notion of a remedy. Remedies are broadly approximated to court orders; more strictly, they are the rights arising from these orders. This enables a rigorous separation of remedies from substantive rights, that is, rights which exist before the making of a court order. The book then reviews established classifications of remedies, showing how they are seriously deficient and developing a new taxonomy based upon the relationship between substantive rights and remedies. This provides a much better understanding of that relationship, especially of the role of judicial discretion in the granting of remedies. The book then moves on to provide an overview of remedies in private law within the new analytical framework. It shows how each order that may be made by a court in a civil case gives effect to the substantive rights of the parties to the dispute. Particular primary and secondary (or remedial) rights, such as rights to damages, are carefully disentangled from the remedies which effectuate them, and the similarities and differences between various remedies are revealed. This book provides a new way to view remedies and substantive rights. It insists that the law of remedies must not reproduce parts of the law of substantive rights under a different name. For the first time, remedies are established as a stable and distinct area of law.Less
This book is about the law of remedies. It establishes the boundaries of this discrete area of law and provides a new classification of remedies. The book first examines the difficulties of the term ‘remedy’, and identifies the most robust notion of a remedy. Remedies are broadly approximated to court orders; more strictly, they are the rights arising from these orders. This enables a rigorous separation of remedies from substantive rights, that is, rights which exist before the making of a court order. The book then reviews established classifications of remedies, showing how they are seriously deficient and developing a new taxonomy based upon the relationship between substantive rights and remedies. This provides a much better understanding of that relationship, especially of the role of judicial discretion in the granting of remedies. The book then moves on to provide an overview of remedies in private law within the new analytical framework. It shows how each order that may be made by a court in a civil case gives effect to the substantive rights of the parties to the dispute. Particular primary and secondary (or remedial) rights, such as rights to damages, are carefully disentangled from the remedies which effectuate them, and the similarities and differences between various remedies are revealed. This book provides a new way to view remedies and substantive rights. It insists that the law of remedies must not reproduce parts of the law of substantive rights under a different name. For the first time, remedies are established as a stable and distinct area of law.
Jerome Neu
- Published in print:
- 2007
- Published Online:
- January 2008
- ISBN:
- 9780195314311
- eISBN:
- 9780199871780
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195314311.003.0007
- Subject:
- Philosophy, Philosophy of Language
The law of defamation seeks to provide remedies for some of the harms in insult, in particular damage to reputation. New York Times Co. v. Sullivan limits those remedies with respect to public ...
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The law of defamation seeks to provide remedies for some of the harms in insult, in particular damage to reputation. New York Times Co. v. Sullivan limits those remedies with respect to public figures, and this chapter considers some of the distinctions and principles involved in providing remedies, including the nature of reasonable expectations.Less
The law of defamation seeks to provide remedies for some of the harms in insult, in particular damage to reputation. New York Times Co. v. Sullivan limits those remedies with respect to public figures, and this chapter considers some of the distinctions and principles involved in providing remedies, including the nature of reasonable expectations.
Stephen A. Smith
- Published in print:
- 1993
- Published Online:
- March 2012
- ISBN:
- 9780198765615
- eISBN:
- 9780191695308
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198765615.001.0001
- Subject:
- Law, Law of Obligations
This book is both an examination of, and a contribution to, our understanding of the theoretical foundations of the common law of contract. Focusing on contemporary debates in contract theory, the ...
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This book is both an examination of, and a contribution to, our understanding of the theoretical foundations of the common law of contract. Focusing on contemporary debates in contract theory, the book aims to help readers better understand the nature and justification of the general idea of contractual obligation, as well as the nature and justification of the particular rules that make up the law of contract. The book is in three parts. Part I introduces the idea of ‘contract theory’, and presents a framework for identifying, classifying, and evaluating contract theories. Part II describes and evaluates the most important general theories of contract; examples include promissory theories, reliance-based theories, and economic theories. In Part III, the theoretical issues raised by the various specific doctrines that make up the law of contract (e.g., offer and acceptance, consideration, mistake, remedies, etc.) are examined in separate chapters. The legal focus of the book is the common law of the United Kingdom, but the theoretical literature discussed is international in origin; the arguments discussed are thus relevant to understanding the law of other common law jurisdictions and, in many instances, to understanding the law of civil law jurisdictions as well.Less
This book is both an examination of, and a contribution to, our understanding of the theoretical foundations of the common law of contract. Focusing on contemporary debates in contract theory, the book aims to help readers better understand the nature and justification of the general idea of contractual obligation, as well as the nature and justification of the particular rules that make up the law of contract. The book is in three parts. Part I introduces the idea of ‘contract theory’, and presents a framework for identifying, classifying, and evaluating contract theories. Part II describes and evaluates the most important general theories of contract; examples include promissory theories, reliance-based theories, and economic theories. In Part III, the theoretical issues raised by the various specific doctrines that make up the law of contract (e.g., offer and acceptance, consideration, mistake, remedies, etc.) are examined in separate chapters. The legal focus of the book is the common law of the United Kingdom, but the theoretical literature discussed is international in origin; the arguments discussed are thus relevant to understanding the law of other common law jurisdictions and, in many instances, to understanding the law of civil law jurisdictions as well.
