The Oxford Handbook of the New Private Law

The Oxford Handbook of the New Private Law reflects exciting developments in scholarship dedicated to reinvigorating the study of the broad field of private law. This field embraces the traditional common law subjects (property, contracts, and torts), as well as adjacent, more statutory areas, such as intellectual property and commercial law. It also includes important areas that have been neglected in the United States but are beginning to make a comeback. These include unjust enrichment, restitution, equity, and remedies more generally. "Private law" can also mean private law as a whole, which invites consideration of issues such as the public-private distinction, the similarities and differences between the various areas of private law, and the institutional framework supporting private law - including courts, arbitrators, and even custom. The New Private Law is an approach to these subjects that aims to bring a new outlook to the study of private law by moving beyond reductively instrumentalist policy evaluation and narrow, rule-by-rule, doctrine-by-doctrine analysis, so as to consider and capture how private law's various features fit and work together, as well as the normative underpinnings of these larger structures. This movement has begun resuscitating the notion of private law itself in the United States and has brought an interdisciplinary perspective to the more traditional, doctrinal approach prevalent in Commonwealth countries. The Handbook embraces a broad range of perspectives to private law - including philosophical, economic, historical, and psychological, to name a few - yet it offers a unifying theme of seriousness about the structure and content of private law. It will be an essential resource for legal scholars interested in the future of this important field.

Auteur

Andrew S. Gold is professor of law at Brooklyn Law School and is associate director of the Center for the Study of Business Law and Regulation. Professor Gold's primary research interests address private law theory, fiduciary law, and the law of corporations. He is a co-editor of multiple books on fiduciary theory, including Fiduciary Government (Cambridge University Press, 2018) ; Contract, Status, and Fiduciary Law (Oxford University Press, 2017); and Philosophical Foundations of Fiduciary Law (Oxford University Press 2014). He is also currently writing a monograph, "The Right of Redress," to be published with Oxford University Press. Professor Gold previously was the Bruce W. Nichols Visiting Professor at Harvard Law School; an HLA Hart Visiting Fellow at the University of Oxford; and a Fulbright Visiting Research Chair at McGill University. John C.P. Goldberg is Deputy Dean and Carter Professor of General Jurisprudence at Harvard Law School. An expert in tort law, tort theory, and political philosophy, he previously taught at Vanderbilt Law School, where he served as Associate Dean for Research (2006-08). He is co-author of Recognizing Wrongs (Harvard University Press, 2020) (with Benjamin Zipursky), as well as Tort Law: Responsibilities and Redress (4th ed. 2016) (with Anthony Sebok and Benjamin Zipursky), and The Oxford Introductions to U.S. Law: Torts (2010) (with Zipursky). He has also published dozens of articles and essays in scholarly journals. Goldberg has taught an array of first-year and upper-level courses, and has received multiple teaching prizes. An Associate Reporter for the American Law Institute's Fourth Restatement of Property, he serves as an advisor to the Third Restatement of Torts, and is a member of the editorial boards of the Journal of Tort Law and Legal Theory. In 2009, he was Chair of the Torts and Compensation Systems Section of the Association of American Law Schools. Daniel B. Kelly is Professor of Law, Director of the Program in Law and Economics, and Director of the Fitzgerald Institute for Real Estate at the University of Notre Dame. He has been a Visiting Professor of Law at the University of Chicago Law School and Harvard Law School. His primary research and teaching areas include property and trusts and estates. Emily Sherwin is Frank B. Ingersol Professor of Law at Cornell Law School. She has taught at the University of Kentucky Law School and University of San Diego Law School, and has visited at the Boston University School of Law and University of Pennsylvania Law School. She writes on various aspects of legal theory and remedies. Henry E. Smith is Fessenden Professor of Law and the Director of the Project on the Foundations of Private Law at Harvard Law School. Previously, he taught at the Northwestern University School of Law and was the Fred A. Johnston Professor of Property and Environmental Law at Yale Law School. He has written extensively on property, equity, remedies, and private law theory. In 2014, the American Law Institute named him Reporter for the Restatement (Fourth) of Property. With Professor Thomas Merrill of Columbia Law School, he is the co-author of The Oxford Introductions to U.S. Law: Property (Oxford: Oxford University Press, 2010) and Property: Principles and Policies (Foundation Press, 2nd ed., 2012). He is co-editor of The Research Handbook on the Economics of Property Law (with Kenneth Ayotte, Elgar, 2011), Philosophical Foundations of Property Law (with James Penner, OUP 2013), and Perspectives on Property Law (with Robert C. Ellickson and Carol M. Rose, Aspen 2014).

Contenu

Part I Theoretical Perspectives 1. Internal and External Perspectives: On the New Private Law Methodology Andrew S. Gold 2. Natural Rights and Natural Law Dennis Klimchuk 3. Corrective Justice: Sovereign or Subordinate? Gregory C. Keating 4. Civil Recourse Theory Benjamin C. Zipursky 5. Kantian Perspectives on Private Law Arthur Ripstein 6. Law and Economics Daniel B. Kelly 7. New Institutional Economics Barak Richman 8. Psychology and the New Private Law Tess Wilkinson-Ryan 9. Systems Theory: Emergent Private Law Henry E. Smith 10. Private Law and Local Custom Nathan B. Oman 11. Autonomy and Pluralism in Private Law Hanoch Dagan 12. A Feminist Perspective: Private Law as Unjust Enrichment Anita Bernstein 13. Historical Perspectives Joshua Getzler 14. Civil and Common Law Lionel Smith Part II Core Fields of Private Law 15. Function and Form in Contract Law Alan Schwartz and Daniel Markovits 16. Torts John C. P. Goldberg 17. Property J. E. Penner 18. Unjust Enrichment and Restitution Andrew Burrows 19. Fiduciary Law W. Bradley Wendel 20. Trust Law: Private Ordering and the Branching of American Trust Law John D. Morley and Robert H. Sitkoff 21. Corporate Law Paul B. Miller 22. The Employment Relationship as an Object of Employment Law Aditi Bagchi 23. New Private Law and the Family Margaret F. Brinig 24. False Advertising Law Gregory Klass 25. The New Private Law and Intellectual Property: Calibrating Copyright on the Common Law Continuum Molly Van Houweling 26. Traditional Knowledge and Private Law Ruth L. Okediji 27. Insurance Kenneth S. Abraham Part III Core Principles of Private Law 28. Formalism and Realism in Private Law Emily Sherwin 29. Privity Mark P. Gergen 30. Good Faith in Contractual Exchanges Richard R.W. Brooks 31. The Rule of Law Lisa M. Austin 32. Defenses Robert Stevens 33. Equity Ben McFarlane 34. Remedies Samuel L. Bray 35. Private and Public Law Thomas W. Merrill