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<title>Tel Aviv University Law Faculty Papers</title>
<copyright>Copyright (c) 2013 Tel Aviv University Law School All rights reserved.</copyright>
<link>http://law.bepress.com/taulwps</link>
<description>Recent documents in Tel Aviv University Law Faculty Papers</description>
<language>en-us</language>
<lastBuildDate>Wed, 24 Apr 2013 01:49:26 PDT</lastBuildDate>
<ttl>3600</ttl>


	
		
	







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<title>The Multinational Corporation as “the Good Despot”: The Democratic Costs of Privatization in Global Settings</title>
<link>http://law.bepress.com/taulwps/art172</link>
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<pubDate>Mon, 22 Apr 2013 08:53:52 PDT</pubDate>
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	<p>In 1861 John Stuart Mill published <em>Considerations on Representative Government </em>to discuss the justifications of democracy. The third chapter of this book explores why a government run by a <em>good despot </em>is unacceptable. In this article we revisit Mill's critique of the good despot to problematize the contemporary exercise of authority and influence by multinational companies especially in foreign countries. Inspired by Mill, we move away from the preoccupation of contemporary literature on privatization with the identity the actor (the question whether certain governmental functions must remain the province of public authorities) or the outcome of privatization (how it influences human rights or causes environmental damage) and shift attention to the democracy losses associated with the privatized decision-making process of the corporation. We identify the growing influence of private, particularly foreign actors, as a <em>democratic </em>problem of exclusion of persons from decision-making processes on issues with constitutive influence on their lives, and explore the different aspects of what we regard as an acute problem of democratic deficit.</p>

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<author>Eyal Benvenisti et al.</author>


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<title>LAW AS AN ACADEMIC DISCIPLINE</title>
<link>http://law.bepress.com/taulwps/art171</link>
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<pubDate>Tue, 05 Mar 2013 05:30:23 PST</pubDate>
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	<p>Is law an autonomous academic discipline, distinct and isolated from neighboring fields? Or is it merely an object of academic research that borrows its conceptual framework from the humanities or the social sciences? The choice between these two alternatives—and a possible third, middle position—is important both in itself and as the foundation of a critical analysis of specific institutional arrangements concerning such issues as professional associations, specialized journals, and, most notably, advanced legal education. This Essay investigates the two extreme alternatives of autonomy and assimilation, and offers a preliminary account of a midway position, claiming that relevant lessons from the social sciences and the humanities are always potentially relevant to law but never exhaust the theoretical inquiry of it.</p>
<p>Past as well as current theories of law’s autonomy do not fully account for the necessary extra-doctrinal underpinnings of legal materials, nor do they sufficiently appreciate the justificatory burden entailed by the prospective effects of every significant legal pronouncement. These shortcomings, however, do not imply the collapse of law as an academic enterprise robust enough to justify a separate category. Using the theories and methods of other disciplines definitely enriches our understanding of law, but these helpful exercises never suffice because they do not pay appropriate attention to the nature of law as a set of coercive normative institutions and, furthermore, tend to fragment rather than synthesize the interdisciplinary lessons of law. Legal theory compensates for both these limitations by focusing on the work of society’s coercive normative institutions and through its synthetic character.</p>
<p>Legal theory studies the traditions of these institutions and the craft typical of their members, while continuously challenging their outputs by demonstrating their contingency and testing their desirability. When performing these tasks, legal theory necessarily resorts to law’s neighboring disciplines. At its best, however, legal theory is more than a sophisticated synthesis of relevant insights from these friendly neighbors, because legal theory is consciously reflective on persistent jurisprudential questions regarding the nature of law, notably the relationship between law’s normativity and its coerciveness, given law’s institutional and structural characteristics.</p>

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<author>Hanoch Dagan</author>


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<title>War is Governance: Explaining the Logic of the Laws of War from a Principal-Agent Perspective</title>
<link>http://law.bepress.com/taulwps/art170</link>
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<pubDate>Sat, 12 Jan 2013 11:04:24 PST</pubDate>
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	<p>What is the purpose of the international law on armed conflict, and why would opponents bent on destroying each other’s capabilities commit to and obey rules designed to limit their choice of targets, weapons and tactics? Traditionally, answers to this question have been offered on the one hand by moralists who regard the law as being inspired by morality, and on the other by realists who explain this branch of law on the basis of reciprocity. Neither side's answers withstand close scrutiny. In this Article we develop an alternative explanation which is based on the principal-agent model of domestic governance. We pry open the black box of "the state," and examine the complex interaction between the civilian and military apparatuses seething beneath the veil of sovereignty. Our point of departure is that military conflicts raise significant <em>intra-state </em>conflicts of interest that result from the delegation of authority to engage in combat: between civil society and elected officials, between elected officials and military commanders, and within the military chain of command. We submit that the most effective way to reduce domestic agency costs prevalent in war is by relying on external resources to monitor and discipline the agents. Even though it may be costly, and reciprocity is not assured, principals who worry that agency slack may harm them or their nations' interests are likely to prefer that warfare be regulated by international norms. The Article expounds the theory and uses it to explain the evolution of the law and its specific doctrines, and outlines the normative implications of this new understanding of the purpose of the law. Ultimately, our analysis suggests that, as a practical matter, international law enhances the ability of states to amass huge armies, because it lowers the costs of controlling them. Therefore, although at times compliance with the law may prove costly in the short run, in the long run it strengthens the state against its enemies.</p>

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<author>Eyal Benvenisti et al.</author>


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<title>Normative Jurisprudence and Legal Realism</title>
<link>http://law.bepress.com/taulwps/art169</link>
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<pubDate>Fri, 30 Nov 2012 07:34:47 PST</pubDate>
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	<p>This review article examines Robin West’s provocative new book <em>Normative Jurisprudence: An Introduction</em>. West provides a learned and sophisticated account of the decay of the three major jurisprudential traditions of North American legal theory: natural law, legal positivism, and critical legal studies, which leads to and is motivated by a spirited plea for the reinvigoration of distinctively legal normative scholarship. Her proposed genealogy is valuable and her preliminary blueprint for reform important. But I believe that both fronts can be significantly enriched by a more charitable reading of legal realism than the one she (briefly) provides. Thus, this review offers a competing genealogical account of the three contemporary approaches to law West criticizes, claiming that like critical scholars, promoters of institutional fit and of economic efficiency are also intellectual descendants of legal realism. Legal realism, I insist, provides a subtle conception of law as a set of institutions distinguished by the irreducible cohabitation of power and reason, science and craft, and tradition and progress. This conception, which was torn apart by the realists’ heirs, offers the key to a proper cure to the predicament West identifies by pointing out to a robust understanding of legal theory and thus of the distinctive contribution legal scholars can make in normative debates.</p>

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<author>Hanoch Dagan</author>


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<title>Lawmaking for Legal Realists</title>
<link>http://law.bepress.com/taulwps/art168</link>
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<pubDate>Thu, 29 Nov 2012 02:00:34 PST</pubDate>
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	<p>This article provides a concise analysis of lawmaking, inspired by what I perceive to be the realist conception of law. Legal realism, as I reconstruct it, stands for the proposition that law is a going institution (or set of institutions) distinguished by the difficult accommodation of three constitutive, yet irresolvable, tensions between power and reason, science and craft, and tradition and progress. Unlike some caricatures of legal realism, this understanding of legal realism explains why the original legal realists invested time and energy in various arenas of lawmaking, shaping and reshaping the various rules and standards that are to govern society. This sustained effort reflects a mature position regarding the rule of law whereby, notwithstanding the malleability of legal doctrine as such, the social practice of law implies stable expectations as to the content of the law at any given time and place. Redrawing the line between promulgation and application along these conventionalist lines paves the way for a realist account of lawmaking. This account is likely to rely on contextual and pragmatic analyses of the pertinent issues at hand. Thus, it implies that, rather than opting for either bright-line rules or vague standards, legal realists would recommend using both precise rules and informative standards founded on the regulative principles of the doctrines at hand, enabling people to predict the consequences of future contingencies and to plan and structure their lives accordingly. Legal realists would likewise avoid binary institutional choices and, in many contexts, appreciate the comparative advantages of both legislatures and courts—in terms of both expected performance and legitimacy—as potential contributors to the development of the law.</p>

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<author>Hanoch Dagan</author>


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<title>Religion in Politics: Rawls and Habermas on Deliberation and Justification</title>
<link>http://law.bepress.com/taulwps/art167</link>
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<pubDate>Sat, 20 Oct 2012 10:19:37 PDT</pubDate>
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	<p>John Rawls’s concept of public reason lumps together a selection of political activities (voting, deliberation, decision-making) and a set of political institutions (legislatures, courts), without sufficiently distinguishing between them or identifying the distinct normative considerations that are relevant to each. Moreover, Rawls’s concept of public reason is very ambiguous. This over-inclusiveness and ambiguity of the concept has spilled over to much of the lively discussion of Rawls’s political liberalism.</p>
<p>I elucidate Rawls’s concept of public reason by recasting it in terms of two major concepts that are relevant to our understanding of the political: deliberation and justification. I argue that Rawls’s public reason should be read as having to do with justification rather than deliberation, and that Jurgen Habermas’s position on public reason is superior to that of Rawls in that it is premised on a clear distinction between deliberation and justification. However, some of Habermas’s critiques of Rawls are unjustified, and there is a contradiction in Habermas’s position.</p>
<p>I also argue that Habermas’s and Rawls’s positions epitomize “the anthropologization of politics” that follows from the substitution of the nation-state paradigm by the multicultural paradigm of the state. The rise of the multicultural paradigm also occasions “the anthropologization of courts”: liberal courts intervening in the cultural practices of non-liberal groups need to support their rulings with justifications internal to those groups, including justifications borrowed from the human rights doctrine.</p>

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<author>Menny Mautner</author>


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<title>Private Ownership</title>
<link>http://law.bepress.com/taulwps/art166</link>
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<pubDate>Sun, 09 Sep 2012 02:20:19 PDT</pubDate>
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	<p>The most powerful response to the growing skepticism about the intelligibility of the idea of private ownership has been cast in terms of owners’ rights to the exclusive use of an object. In these pages, I argue that this response suffers from three basic deficiencies, rather than merely explanatory gaps, that render it unable to overcome the spectre of skepticism. These deficiencies reflect a shared want of attention to the normative relationship that ownership engenders between owners and non-owners. In place of the right to exclusive use, I set out to develop an account of private ownership that seeks to defeat skepticism concerning this idea. The proposed account insists that the idea of private ownership picks out a special authority relation between an owner and a non-owner involving the normative standing of the latter in relation to an object owned by the former. I further demonstrate the important place of this idea in shaping the contours of normative disagreements about the point of ownership rights and responsibilities.</p>

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<author>Avihay Dorfman</author>


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<title>Humane Consequentialism: A Critical Note on Eyal Zamir &amp; Barak Medina, Law, Economics, and Morality</title>
<link>http://law.bepress.com/taulwps/art165</link>
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<pubDate>Sun, 09 Sep 2012 02:18:36 PDT</pubDate>
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	<p>This is Avihay Dorfman's contribution to the symposium on Eyal Zamir and Barak Medina’s “Law, Economics, and Morality”.</p>

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<author>Avihay Dorfman</author>


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<title>Can Tort Law Be Moral?</title>
<link>http://law.bepress.com/taulwps/art164</link>
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<pubDate>Sun, 09 Sep 2012 02:17:03 PDT</pubDate>
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	<p>According to the established orthodoxy, the law of private wrongs—especially common law torts—fails to map onto our moral universe. Four objections in particular have caught the imagination of skeptics about the moral foundations of tort law: They purport to cast doubt over the moral appeal of the duty of care element; they target the seemingly inegalitarian objective standard of care; they object to the morally arbitrary elements of factual causation and harm; and they complain about the unnecessary extension of liability under the guise of the proximate cause element. Analyzing these four prevailing arguments concerning the a-moral (and, with regard to some interpretations, anti-moral) character of tort law, I shall seek to show that the normative structure of tort law can, nonetheless, be reconstructed so as to reflect, to an important extent, our considered judgments about basic moral principles.</p>

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<author>Avihay Dorfman</author>


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<title>Reasonable Care: Equality as Objectivity</title>
<link>http://law.bepress.com/taulwps/art163</link>
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<pubDate>Sun, 09 Sep 2012 01:09:54 PDT</pubDate>
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	<p>The most compelling defense of the standard of reasonable care in negligence law casts itself in terms of equality. This commitment to equality may paradoxically turn out to be flatly inegalitarian. This is because it discriminates against the less capable through ignoring their deficient capabilities (and so against their chances of meeting the standard of reasonable care successfully). A promising, though still unfamiliar, way to revive the egalitarian aspirations of reasonable care would be to show that imposing the standard of reasonable care even on the less competent expresses, rather than inhibits, a true devotion to equality. I seek to make this showing, and thus to reclaim for this standard of care its egalitarian foundations more adequately than has so far been proposed.</p>

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<author>Avihay Dorfman</author>


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<title>The Doctrine of Plaintiff Foreseeability: A Sympathetic Reconstruction</title>
<link>http://law.bepress.com/taulwps/art162</link>
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<pubDate>Sun, 09 Sep 2012 01:07:52 PDT</pubDate>
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	<p>In these pages, I seek to advance two arguments, a negative and a positive. The negative one is that leading accounts of foreseeability in duty-of-care-analysis fail to make sense of the requirement in question. And affirmatively, I shall argue that the foreseeability requirement reflects a concern for the distinctively social form of interaction between risk-creator and risk-taker, namely, that the former could form a relation of respectful recognition of the latter. This reconstruction of the foreseeability requirement may express the view that its moral center may be a thin form of solidarity between members of a liberal society.</p>

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<author>Avihay Dorfman</author>


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<title>Freedom of Religion</title>
<link>http://law.bepress.com/taulwps/art161</link>
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<pubDate>Sun, 09 Sep 2012 01:06:12 PDT</pubDate>
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	<p>Why it is that the principle of freedom of religion, rather than a more general principle such as liberty or liberty of conscience, figures so prominently in our lived experience and, in particular, in the constitutional commitment to the free exercise of religion? The Paper argues, negatively, that the most prominent answers offered thus far fall short; and positively, that the principle of freedom of religion arises out of a thicker understanding of the much neglected relationship between religious liberty and democracy. Indeed, a proper account of the legitimacy of the democratic process, I argue, dissolves the mystery surrounding freedom of religion, and thus allows for an adequate justification of this principle. The thesis of this paper is that freedom of religion is a remedy that redresses the (warranted) exclusion of certain religious arguments from the democratic process. The redress is grounded in a republican concern for political self-determination while exclusion is prescribed by a liberal ideal of political legitimation.</p>

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<author>Avihay Dorfman</author>


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<title>The Property Gap: Private Ownership, Trespass, and the Form/Function Mismatch</title>
<link>http://law.bepress.com/taulwps/art160</link>
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<pubDate>Sun, 09 Sep 2012 01:05:13 PDT</pubDate>
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	<p>One of the most acute charges against private property begins with the observation that ownership generates a trespassory duty of exclusion that far exceeds what a commitment to values such as freedom and well-being could possibly require. According to this observation, there exits a mismatch — in particular, an analytical gulf — between the form of protecting ownership and the functions that this protection may serve. In these pages, I shall develop a novel account of ownership’s normativity, maintaining that, apart from the functions it may render whatever external values are deemed appropriate, the form of ownership is in itself a source of value, in virtue of the society it may engender between free and equal persons. Accordingly, the so-called arbitrary gap between the form and the function of ownership need not plague private ownership, because the functions served by ownership do not exhaust the explanation of its good. And while there is no reason to deny that ownership is partly assessed by reference to the functions it promotes, I shall insist that there is a formal core to property, and that it is a distinctively social one even in the most isolated case of trespass to property.</p>

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<author>Avihay Dorfman</author>


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<title>The Case Against External Explanations of Tort Law: Can Antecedent Values Divine the Deep Structure of Tort Law?</title>
<link>http://law.bepress.com/taulwps/art159</link>
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<pubDate>Sun, 09 Sep 2012 01:03:59 PDT</pubDate>
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	<p>In this paper I discuss the prevailing approach in theoretical reflection about tort law, namely, the tendency to explain its normative structure by reference to values and goals that do not distinctively originate in the engagements that tort law engenders between its constituents. I seek to show that this form of explanation – external explanation – suffers from an important structural deficiency. In particular, I argue that external explanations may lack the normative resources to explain tort law, even on their own respective terms. My analysis reveals that the key to the deep structure of tort law might not be found in abstract economic models or ideals of justice. Rather, it may be found in the freestanding value of the relationship that tort law engenders between care-discharger and cared-for and between defendant-tortfeasor and plaintiff-victim.</p>

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<author>Avihay Dorfman</author>


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<title>The Case Against Privatization</title>
<link>http://law.bepress.com/taulwps/art158</link>
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<pubDate>Sun, 09 Sep 2012 01:01:02 PDT</pubDate>
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	<p>This article develops a non-instrumental argument against privatization of certain forms of political violence. Its primary foci are the privatization of prisons and the use of mercenaries in wars. The article maintains that some governmental decisions simply cannot be executed by private entities. While private individuals may act in conformity with the state's orders, such conformity cannot count as an execution of the order of the state and cannot be attributed to the state. Conformity that does not constitute an execution of the state's order, in turn, fails to realize the ends for the sake of which the infliction of force is justified, i.e., condemnation of the criminal behavior (in the case of punishment) and fighting for the polity’s public good (in the case of wars).</p>

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<author>Avihay Dorfman et al.</author>


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<title>What is the Point of the Tort Remedy?</title>
<link>http://law.bepress.com/taulwps/art157</link>
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<pubDate>Sun, 09 Sep 2012 00:59:04 PDT</pubDate>
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	<p>A tort remedy, as the conventional wisdom has it, might serve any number of masters (ranging from justice to economic efficiency) by vindicating the status quo ante the tort. I shall argue that this view forces one to accept the proposition that the duty to restore the victim to the status quo ante the wrong done her represents a contingency – that is, one among different permissible extensions of the core of the remedial regime animating tort law. Anything outside the core of the remedial regime of tort law, which is the victim’s entitlement to have her rights vindicated by a court of law, is fundamentally a matter of legal engineering; designing the best overall institution to resolve infringements of rights and their lasting, material consequences. In these pages, I shall develop a novel account of this remedy, maintaining that, apart from the contingent services it may render whatever masters are deemed appropriate, the remedial process in tort law is in itself a source of value. The connection that this process establishes between tortfeasors and victims generates a special form of attending to other persons as such – that is, as free and equal agents. The tort remedy, on this account, expresses the intrinsically social character of a legal practice (of torts) grounded in a liberal vision of coexisting with others in the world. It re-establishes and, therefore, engenders a valuable relationship of respectful recognition – a form of a thin solidarity – between parties in a tort dispute. The account that I shall articulate does not only provide a more sympathetic interpretation of the essential core of tort law and remedy than the one implicit in the conventional view and in the various approaches that dominate contemporary theoretical discourse. Rather, it also aspires to illuminate important questions in positive tort law and remedy. Pursuing this task piecemeal, I shall deploy the ideal of re-establishing respectful recognition through the tort remedy in the service of explaining the mysterious category of punitive damages. Accordingly, I shall show that, in taking the form of private law, this category can make sense insofar as it is viewed as a conceptually plausible extension of the proposed ideal.</p>

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<author>Avihay Dorfman</author>


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<title>Property and Collective Undertaking: The Principle of Numerus Clausus</title>
<link>http://law.bepress.com/taulwps/art156</link>
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<pubDate>Sun, 09 Sep 2012 00:57:15 PDT</pubDate>
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	<p>Property rights are subject to the principle of numerus clausus, which is a restriction that means that it cannot be up to the contracting parties - or private persons, more generally - to create new forms of property right, but only to trade rights that take existing forms. What can explain this peculiar limitation? All the answers offered so far by property theorists have marshaled functional explanations either in favor of or against the numerus clausus principle (hereinafter: NC). In this paper I shall set out to articulate a novel explanation of this principle. My argument develops two general claims. Negatively, explanations that emphasize the desirable effects - the functions - associated with this sort of limitation on the creation of new forms of property right cannot explain the principle in question. As I shall seek to show, this shortcoming is no mere explanatory gap. The NC principle, I argue, remains flatly indifferent to the functions advanced through property rights. Affirmatively, I shall seek to show that the principle of NC reflects a concern about legitimate political authority - that is, it gives a doctrinal expression to the question of how political authority is possible. The authority in question pertains to the normative power of legislating new property rights and their correlative obligations. The principle of NC, I argue, is a limitation on private legislation of new forms of property right. Most importantly, I shall argue that the underlying idea of political legitimation that grounds this principle is none other than democratic self-governance.</p>

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<author>Avihay Dorfman</author>


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<title>Copyright as Tort</title>
<link>http://law.bepress.com/taulwps/art155</link>
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<pubDate>Sun, 09 Sep 2012 00:55:35 PDT</pubDate>
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	<p>In these pages we seek to integrate two claims. First, we argue that, taken to their logical conclusions, the considerations that support a strict form of protection for tangible property rights do not call for a similar form of protection when applied to the case of copyright. More dramatically, these considerations demand, on pain of glaring inconsistency, a substantially weaker protection for copyright. In pursuing this claim, we show that the form of protecting property rights (including rights in tangibles) is, to an important extent, a feature of certain normal, though contingent, facts about the human world. Second, the normative question concerning the selection of a desirable protection for creative works is most naturally pursued from a tort law perspective, in part because the normative structure of copyright law simply is that of tort law.</p>

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<author>Avihay Dorfman et al.</author>


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<title>The Society of Property</title>
<link>http://law.bepress.com/taulwps/art154</link>
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<pubDate>Sun, 09 Sep 2012 00:52:32 PDT</pubDate>
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	<p>Property rights and duties, as it is often said, are good against the world, whereas contract rights and obligations apply more narrowly against specific others. The most basic question that arises in connection with this distinction is what accounts for the general scope that property rights and duties, unlike their contractual counterparts, share? Almost all the theories that have so far sought to address this question have emphasized the extrinsic circumstances - such as transaction costs or the normative priority of protecting property over contract rights. In that, these theories might be able to explain the general scope of application characteristic of property rights and duties, on the one hand, and the particular reach of contract rights and duties, on the other. This starting point, however, implies the conclusion that property and contract rights and duties are, at best, quantitatively different, reflecting differences of degree, not of quality. More precisely, the source of the difference (whatever it is) does not originate in either property or contract, but rather lies outside both (for instance, in the costs of making and carrying out transactions concerning external objects). Although this approach is perfectly sound as far as it goes, it does not go far enough. In particular, it fails to consider whether the general scope of property rights and duties is, in fact, a side effect of the special structure of property (vis-à-vis contract). Indeed, this possibility can be found once it is sought in the distinctive form of social coordination that property takes. On the account I shall develop, property is a framework of coordination in which participants approach the resolution of their competing claims (such as for use of and access to an object) together. In this way, property turns coordination itself into a form of respectful recognition among persons, quite apart from the functions it serves (such as promoting efficiency or sustaining freedom). This is, I argue, because the duties that arise in connection with a system of property take a categorically social form - that is, they can engender interactions of respect and recognition between persons simply in virtue of their being persons. Duties originating in a contractual interaction, by contrast, may (at best) take a hypothetically social form - that is, they may (arguably) establish relations of respect and recognition in which being a person as such is never sufficient for these relations to get going. This formal way of distinguishing between property and contract obligations lies at the center of the characterization of the duties in question that I shall pursue in these pages. Moreover, and perhaps more dramatically, this characterization provides the necessary normative resources to elaborate on their normativity - I shall argue that property, unlike contract, expresses the categorical value of regarding others as free and equal persons (at least in the sphere of action onto which property maps).</p>

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<author>Avihay Dorfman</author>


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<title>Colonialism’s Civilizing Mission: The Case of the Indian Hemp Drugs Commission</title>
<link>http://law.bepress.com/taulwps/art153</link>
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<pubDate>Mon, 27 Aug 2012 05:49:52 PDT</pubDate>
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<author>Daphna Hacker</author>


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