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Vol 23 No 5 May/June 2018

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Drafting Commercial Agreements

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The Goals of Private Law

Edited by: Andrew Robertson, Hang Wu Tang

ISBN13: 9781841139098
Published: November 2009
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £110.00

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This collection contributes to a fundamental debate about the nature of private law. The essays consider whether private law should be seen as having goals and, if so, whether those goals are particular to private as opposed to public law. They consider the legitimacy of the pursuit of community welfare goals in private law and the place of instrumentalist thinking in private law scholarship.

They explore the relationship between the pursuit of policy goals and the other influences that shape private law, such as the formal values of certainty, consistency and coherence and the need to do justice to the parties to particular disputes. They analyse the role that particular policy goals do and should play in particular private law doctrines, and contribute to debate about the relationship between community welfare goals and considerations of interpersonal morality arising from the interactions between individuals.

The contributors are drawn from across the common law world and offer a diverse range of perspectives on the controversies under consideration.

1. Introduction: Goals, Rights and Obligations Andrew Robertson

Part I-Private Law and Public Goals
2. The Mutually Constitutive Nature of Public and Private Law Mayo Moran 3. What's Private About Private Law? William Lucy
Part II-Rights and Goals
4. The Role of Duty of Care in a Rights-Based Theory of Negligence Law Stephen Perry
5. The Rights of Private Law Stephen A Smith
6. The Conflict of Rights Robert Stevens
7. Causation and the Goals of Tort Law Donal Nolan

Part III-The Role of Goals in Private Law
8. Looking Outward or Looking Inward? Obligations Scholarship in the Early 21st Century Steve Hedley
9. Treating Like Cases Alike: Principle and Classification in Private Law Charlie Webb
10. Tort Law, Concepts and What Really Matters Roderick Bagshaw
11. Constraints on Policy-Based Reasoning in Private Law Andrew Robertson

Part IV-Community Welfare Goals in Private Law Doctrines
12. Negligent Investigation: Tort Law as Police Ombudsman Erika Chamberlain
13. Deterrence in Private Law Yock Lin Tan
14. Justifying Fiduciary Allowances Matthew Harding
15. Gain-Based Remedies and the Place of Deterrence in the Law of Fiduciary Obligations Anthony Duggan
16. The Normative Foundations of Restitution for Wrongs: Justifying Gain-based Relief for Nuisance Craig Rotherham

Part V-The Goals of Unjust Enrichment Law
17. Just and Unjust Enrichments Hanoch Dagan
18. The Rules of Obligations Emily Sherwin
19. Storytelling in the Law of Unjust Enrichment Tang Hang Wu
20. Demolishing the Pyramid-the Presence of Basis and Risk-Taking in the Law of Unjust Enrichment Graham Virgo Stephen Perry (Pennsylvania) Peter Benson (Toronto), Robert Stevens (UCL) Mayo Moran (Toronto) Tony Duggan Toronto) Hanoch Dagan (Tel Aviv) William Lucy (Manchester).

Tort law: Lord Hoffmann, Donal Nolan (Oxford), Roderick Bagshaw (Oxford), Kumaralingam Amirthalingam (Singapore) and Jenny Steele (Southampton).
Unjust enrichment: Charles Rickett (Queensland), Lionel Smith (McGill), Emily Sherwin (Cornell).
Equity and trusts: Ben Mcfarlane (Oxford), John Mee (Cork), Craig Rotherham (Nottingham).
Contract: Mindy Chen-Wishart (Oxford), David Campbell (Durham).
Remedies: Stephen Smith (McGill), Michael Bryan (Melbourne).