Category Archives: Deontic theory

Just published: Allan Beever, A Theory of Tort Liability

This book provides a comprehensive theory of the rights upon which tort law is based and the liability that flows from violating those rights. Inspired by the account of private law contained in Immanuel Kant’s Metaphysics of Morals, the book shows that Kant’s theory elucidates a conception of interpersonal wrongdoing that illuminates the operation of […]

Andrew Gold, ‘Private Rights and Private Wrongs’

Abstract: This essay reviews Arthur Ripstein’s new book, Private Wrongs (Harvard University Press, 2016). Private Wrongs will be a landmark in tort theory, as it brilliantly applies Ripstein’s Kantian account of tort law to legal doctrine. At the center of the book’s argument is the view that one person should not get to be in […]

Carmen Pavel, ‘A Legal Conventionalist Approach to Pollution’

Abstract: There are no moral entitlements with respect to pollution prior to legal conventions that establish them, or so I will argue. While some moral entitlements precede legal conventions, pollution is part of a category of harms against interests that stands apart in this regard. More specifically, pollution is a problematic type of harm that […]

Patrick Shaunessy, ‘A Matter of Choice: Rethinking Legal Formalism’s Account of Private Law Rights’

Abstract: Ernest Weinrib’s theory of legal formalism argues that there are two mutually irreducible forms of justice: distributive justice and corrective justice. Formalism views private law exclusively through the lens of corrective justice and frames the legal relationship between individuals in terms of correlative rights and duties. This article considers the rights (and duties) of […]

Patrick Shaunessy, ‘A Matter of Choice: Rethinking Legal Formalism’s Account of Private Law Rights’

Abstract: Ernest Weinrib’s theory of legal formalism argues that there are two mutually irreducible forms of justice: distributive justice and corrective justice. Formalism views private law exclusively through the lens of corrective justice and frames the legal relationship between individuals in terms of correlative rights and duties. This article considers the rights (and duties) of […]

Alexander Lemann, ‘Coercive Insurance and the Soul of Tort Law’

Abstract: Scholars have long accepted the idea that there are alternatives to the tort system, particularly insurance, that are better at compensating victims than tort law. Tort law remains necessary, it has been assumed, because insurance lacks the ability to deter conduct that causes harm, and indeed it sometimes creates a moral hazard that increases […]

Enrique Guerra-Pujol, ‘Illegal Promises’

Abstract: The proposition that ‘promises ought to be kept’ is one of the most important normative ideas or value judgements in our daily lives. But what about ‘illegal promises’? That is to say, what about promises that are, legally or morally speaking, malum in se or inherently wrongful, such as voluntary exchanges that are inherently […]

Dagan and Dorfman, ‘Against Private Law Escapism: Comment on Arthur Ripstein, Private Wrongs

Abstract: Can a comprehensive theory of tort law evade the ultimate test of our moral intuitions (or reflective equilibrium)? We shall argue, first, that Ripstein’s illuminating Private Wrongs, including in particular his organizing distinctions between misfeasance and nonfeasance, between relation and comparison, and between horizontal and vertical justice, cannot escape that test; and, second, that […]

David Blankfein-Tabachnick, ‘Property, Duress, and Consensual Relationships’

Abstract: Professor Seana Valentine Shiffrin has produced an exciting new book, Speech Matters: On Lying, Morality, and the Law. Shiffrin’s previous rigorous, careful, and morally sensitive work spans contract law, intellectual property, and the freedoms of association and expression. Speech Matters is in line with Shiffrin’s signature move: we ought to reform our social practices […]

Just Published: Arthur Ripstein, Private Wrongs

“… Ripstein shows that all torts violate the basic moral idea that each individual is in charge of his or her own person and property, and never in charge of another individual’s person or property. Battery and trespass involve one person wrongly using another’s body or things, while negligence injures others by imposing risks to […]