ebook img

Rights and Private Law PDF

683 Pages·2012·2.344 MB·English
Most books are stored in the elastic cloud where traffic is expensive. For this reason, we have a limit on daily download.

Preview Rights and Private Law

RIGHTS AND PRIVATE LAW In recent years a strand of thinking has developed in private law schol- arship which has come to be known as ‘rights’ or ‘rights-based’ analysis. Rights analysis seeks to develop an understanding of private law obliga- tions that is driven, primarily or exclusively, by the recognition of the rights we have against each other, rather than by other infl uences on private law, such as the pursuit of community welfare goals. Notions of rights are also assuming greater importance in private law in other respects. Human rights instruments are having an increasing infl uence on private law doctrines. And in the law of unjust enrichment, an important debate has recently begun on the relationship between restitution of rights and restitution of value. This collection is a signifi cant contribution to debate about the role of rights in private law. It includes essays by leading private law scholars addressing fundamental questions about the role of rights in private law as a whole and within particular areas of private law. The collection includes contributions by advocates and critics of rights-based approaches and provides a thorough and balanced analysis of the relationship between rights and private law. Rights and Private Law Edited by Donal Nolan and Andrew Robertson OXFORD AND PORTLAND, OREGON 2012 Published in the United Kingdom by Hart Publishing Ltd 16C Worcester Place, Oxford, OX1 2JW Telephone: +44 (0)1865 517530 Fax: +44 (0)1865 510710 E-mail: mail@hartpub.co.uk Website: http://www.hartpub.co.uk Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA Tel: +1 503 287 3093 or toll-free: (1) 800 944 6190 Fax: +1 503 280 8832 E-mail: orders@isbs.com Website: http://www.isbs.com © The editors and contributors severally 2012 The editors and contributors have asserted their right under the Copyright, Designs and Patents Act 1988, to be identifi ed as the authors of this work. All rights reserved. No part of this publication may be repro- duced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission of Hart Publishing, or as expressly permitted by law or under the terms agreed with the appropriate reprographic rights organisation. Enquiries concerning reproduction which may not be covered by the above should be addressed to Hart Publishing Ltd at the address above. British Library Cataloguing in Publication Data Data Available ISBN: 978-1-84946-142-9 Typeset by Forewords Ltd, Oxon Printed and bound in Great Britain by TJ International Ltd, Padstow, Cornwall Acknowledgements This book had its origins in the Fifth Biennial Conference on the Law of Obligations (Obligations V), which was co-hosted by the Faculty of Law at the University of Oxford and Melbourne Law School and was held at St Anne’s College, Oxford from 14–16 July 2010. We would like to express our gratitude to the Faculty of Law at the University of Oxford and to Melbourne Law School for supporting the conference, and particularly to Timothy Endicott, Dean of the Faculty of Law at the University of Oxford and to Michael Crommelin and James Hathaway, former Deans of Melbourne Law School. For their work in con- nection with the conference, we are grateful to Marianne Biese, M aureen O’Neill, Steve Allen, Sadie Slater, Anne Currie and Bento De Sousa in Oxford, as well as to Mardi Richardson, Genevieve Allan and Jessica Sullivan in Melbourne. We are particularly grateful to James Goudkamp for the enormous amount of time and energy which he put into assisting us with the organisation of the conference, and to the Oxford graduate students who helped to ensure the smooth running of the conference ses- sions: Carmine Conte, Andrew Lodder, Aruna Nair, Jaani Riordan, Guy Sela and David Winterton. Finally, we would like to thank Hart Publish- ing, Cambridge University Press and Freshfi elds Bruckhaus Deringer for their sponsorship of the conference, and Allan J Myers AO, QC for his generous fi nancial support of the conference. Our collaboration on the introductory chapter was facilitated by Mel- bourne Law School’s International Research Visitors Scheme, and we are grateful to Melbourne Law School for its support. Finally, we are enor- mously grateful to Julia Wang for her extremely careful and thorough editing of the manuscript. Donal Nolan and Andrew Robertson May 2011 v Contents Acknowledgements v Contributors ix Table of Cases xi Table of Legislation xxv Table of Treaties xxix 1. Rights and Private Law 1 Donal Nolan and Andrew Robertson 2. Rights in Private Law 35 Peter Cane 3. Our Most Fundamental Rights 63 Allan Beever 4. Social Purposes, Fundamental Rights and the Judicial Development of Private Law 89 François du Bois 5. Rights and Other Things 115 Robert Stevens 6. Beyond ‘Right’ and ‘Duty’: Lundstedt’s Theory of Obligations 151 TT Arvind 7. Of Rights Superstructural, Inchoate and Triangular: The Role of Rights in Blackstone’s Commentaries 183 Helge Dedek 8. Rule-Based Rights and Court-Ordered Rights 221 Stephen A Smith 9. Rights and Responsibility in the Law of Torts 251 John CP Goldberg and Benjamin C Zipursky vii viii Contents 10. Damages and Rights 275 Andrew Burrows 11. Explaining the Inexplicable? Four Manifestations of Abuse of Rights in English Law 309 JW Neyers 12. Rights and the Basis of Tort Law 331 Nicholas J McBride 13. Is the Role of Tort to Repair Wrongful Losses? 367 Gregory C Keating 14. The Edges of Tort Law’s Rights 407 Roderick Bagshaw 15. Rights, Pluralism and the Duty of Care 435 Andrew Robertson 16. ‘A Tort Against Land’: Private Nuisance as a Property Tort 459 Donal Nolan 17. Private Nuisance Law: A Window on Substantive Justice 491 Richard W Wright 18. Rights and Wrongs: An Introduction to the Wrongful Interference Actions 525 Sarah Green 19. Misfeasance in a Public Offi ce: A Justifi able Anomaly within the Rights-Based Approach? 553 Erika Chamberlain 20. Unjust Enrichment, Rights and Value 581 Ben McFarlane 21. Rights and Value in Rescission: Some Implications for Unjust Enrichment 609 Elise Bant Index 639 Contributors TT Arvind is a Lecturer at York Law School, University of York. Roderick Bagshaw is a Fellow and Tutor in Law at Magdalen College, Oxford and a Lecturer at the Faculty of Law, University of Oxford. Elise Bant is an Associate Professor of Law at the University of Mel- bourne. Allan Beever is a Professor of Law at the University of South Australia. Andrew Burrows is Professor of the Law of England at the University of Oxford and a Fellow of All Souls College, Oxford. Peter Cane is Distinguished Professor of Law and the Director of Research at the College of Law, Australian National University. Erika Chamberlain is an Associate Professor at the Faculty of Law, Uni- versity of Western Ontario. Helge Dedek is an Assistant Professor at the Faculty of Law, McGill University. François du Bois is an Associate Professor and Reader in Private Law at the University of Nottingham. John CP Goldberg is a Professor of Law at Harvard Law School. Sarah Green is a Fellow and Tutor in Law at St Hilda’s College, Univer- sity of Oxford. Gregory C Keating is the William T Dalessi Professor of Law and Philoso- phy at the Gould School of Law, University of Southern California. Nicholas J McBride is a Fellow of Pembroke College, Cambridge. Ben McFarlane is a Reader in Property Law at the University of Oxford and a Fellow and Tutor in Law at Trinity College, Oxford. JW Neyers is an Associate Professor at the Faculty of Law, University of Western Ontario. Donal Nolan is the Porjes Foundation Fellow and Tutor in Law at Worces- ter College, University of Oxford. ix

See more

The list of books you might like

book image

Better Than the Movies

Lynn Painter
·2021
·1.51 MB

book image

The Silent Patient

Alex Michaelides
·0.52 MB

book image

Mind Management, Not Time Management

David Kadavy
·2020
·0.58 MB

book image

The Subtle Art of Not Giving a F*ck

Mark Manson
·224 Pages
·2016
·1.26 MB

book image

las voces de la novela

106 Pages
·2012
·8.56 MB

book image

Office Ergonomics

Kroemer, Karl H.E.
·269 Pages
·2014
·3.493 MB

book image

Greek Government Gazette: Part 3, 2009 no. 407

The Government of the Hellenic Republic
·2009
·0.11 MB

book image

Kolonien der Liebe

Heidenreich, Elke [Heidenreich, Elke]
·2015
·0.2156 MB

book image

Ally McCoist - Rangers Legend

Aird, Alistair
·2011
·3.043 MB

book image

Assessment of Learners with Dyslexic-Type Difficulties

Kelly, Kathleen S.;Phillips, Sylvia;Symes, Liz
·2013
·6.801 MB

book image

Ética del Desarrollo

Denis Goulet
·381 Pages
·1965
·14.721 MB