Henry E. Smith – författare

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.

The Oxford Introductions to U.S. Law: Property provides both a bird's eye overview of property law and an introduction to how property law affects larger concerns with individual autonomy, personhood, and economic organization. Written by two authorities on property law, this book gives students of property a coherent account of how property law works, with an emphasis on describing the central issues and policy debates. It is designed for law students who want a short and theoretically integrated treatment of the subject, as well as for lawyers who are interested in the conceptual foundations of the law of property.

Long regarded by US legal scholars as uninteresting, private law theory has received renewed attention in the United States and around the world. Yet, even amid this scholarly revival, private law is still too often reduced to the more traditional concepts found within tort, property, and contract law. These basic categories alone cannot provide sufficient basis for informed doctrinal analysis - lawyers who hope to apply private law theory must also understand the rules and concepts that operate independently of, across, or within the interstices of these fields.The essays collected in Interstitial Private Law encourage the next generation of private law theorists to engage with the 'connective tissue' of private law. Internationally prominent scholars introduce and analyze these crucially important interstitial aspects, including legal personhood, agency and other attribution rules, consent, estoppel, equity, remedies, and restitution. Contributions explain what interstitial concepts are and explore the ways they operate, contributing to the systematicity and functional coherence of private law systems. In doing so, Interstitial Private Law broadens and deepens the scholarly agenda for private law theory in the United States and worldwide.

The law of Equity, a latecomer to the field of private law theory, raises fundamental questions about the relationships between law and morality, the nature of rights, and the extent to which we are willing to compromise on the rule of law ideal to achieve social goals. In this volume, leading scholars come together to address these and other questions about underlying principles of Equity and its relationship to the common law: What relationships, if any, are there between the legal, philosophical, and moral senses of 'equity'? Does Equity form a second-order constraint on law? If so, is its operation at odds with the rule of law? Do the various theories of Equity require some kind of separation of law and equity-and, if they do, what kind of separation? The volume further sheds light on some of the most topical questions of jurisprudence that are embedded in the debate around 'fusion'. A noteworthy addition to the Philosophical Foundations series, this volume is an important contribution to an ongoing debate, and will be of value to students and scholars across the discipline.

Equity can be defined as the use of a more flexible, morally judgmental, and subjective mode of legal decision making that roughly corresponds with historical equity. This Element presents a simple contracting model that captures the role of equity as a safety valve, and shows how it can solve problems posed by opportunists-agents with unusual willingness and ability to take advantage of necessary imperfections in the law. In this model, a simple but imperfect formal legal regime is able to achieve first best in the absence of opportunists. But when opportunists are added, a more flexible regime (equity), can be preferred. However, equity is also vulnerable to being used opportunistically by the parties it intends to protect. Hence, the Element shows that it is often preferable to limit equity, reserving it for use only against those who appear sufficiently likely to be opportunists.

This volume introduces the legal philosopher Adolf Reinach and his contributions to speech act theory, as well as his analysis of basic legal concepts and their relationship to positive law. Reinach's thorough analysis has recently garnered growing interest in private law theory, yet his 'phenomenological realist' philosophical approach is not in line with contemporary mainstream approaches. The essays in this volume resuscitate and interrogate Reinach's unique account of the foundations of private law, situating him in contemporary private law theory and broader philosophical currents. The work also makes Reinach's methods more accessible to those unfamiliar with early phenomenology. Together these contributions prove that while Reinach's perspective on private law shares similarities and points of departure with trends in today's legal theory, many of his insights remain singular and illuminating in their own right. This title is also available as Open Access on Cambridge Core.

This volume introduces the legal philosopher Adolf Reinach and his contributions to speech act theory, as well as his analysis of basic legal concepts and their relationship to positive law. Reinach's thorough analysis has recently garnered growing interest in private law theory, yet his 'phenomenological realist' philosophical approach is not in line with contemporary mainstream approaches. The essays in this volume resuscitate and interrogate Reinach's unique account of the foundations of private law, situating him in contemporary private law theory and broader philosophical currents. The work also makes Reinach's methods more accessible to those unfamiliar with early phenomenology. Together these contributions prove that while Reinach's perspective on private law shares similarities and points of departure with trends in today's legal theory, many of his insights remain singular and illuminating in their own right. This title is also available as Open Access on Cambridge Core.

Wesley Hohfeld is known the world over as the legal theorist who famously developed a taxonomy of legal concepts. His contributions to legal thinking have stood the test of time, remaining relevant nearly a century after they were first published. Yet, little systematic attention has been devoted to exploring the full significance of his work. Beginning with a lucid, annotated version of Hohfeld's most important article, this volume is the first to offer a comprehensive look at the scope, significance, reach, intricacies, and shortcomings of Hohfeld's work. Featuring insights from leading legal thinkers, the book also contains many of Hohfeld's previously unseen personal papers, shedding new light on the complex motivations behind Hohfeld's projects. Together, these selected papers and original essays reveal a portrait of a multifaceted and ambitious intellectual who did not live long enough to see the impact of his ideas on the study of law.

The fusion of law and equity in common law systems was a crucial moment in the development of the modern law. Common law and equity were historically the two principal sources of rules and remedies in the judge-made law of England, and this bifurcated system travelled to other countries whose legal systems were derived from the English legal system. The division of law and equity - their fission - was a pivotal legal development and is a feature of most common law systems. The fusion of the common law and equity has brought about major structural, institutional and juridical changes within the common law tradition. In this volume, leading scholars undertake historical, comparative, doctrinal and theoretical analysis that aims to shed light on the ways in which law and equity have fused, and the ways in which they have remained distinct even in a 'post-fusion' world.

The fusion of law and equity in common law systems was a crucial moment in the development of the modern law. Common law and equity were historically the two principal sources of rules and remedies in the judge-made law of England, and this bifurcated system travelled to other countries whose legal systems were derived from the English legal system. The division of law and equity - their fission - was a pivotal legal development and is a feature of most common law systems. The fusion of the common law and equity has brought about major structural, institutional and juridical changes within the common law tradition. In this volume, leading scholars undertake historical, comparative, doctrinal and theoretical analysis that aims to shed light on the ways in which law and equity have fused, and the ways in which they have remained distinct even in a 'post-fusion' world.

Wesley Hohfeld is known the world over as the legal theorist who famously developed a taxonomy of legal concepts. His contributions to legal thinking have stood the test of time, remaining relevant nearly a century after they were first published. Yet, little systematic attention has been devoted to exploring the full significance of his work. Beginning with a lucid, annotated version of Hohfeld's most important article, this volume is the first to offer a comprehensive look at the scope, significance, reach, intricacies, and shortcomings of Hohfeld's work. Featuring insights from leading legal thinkers, the book also contains many of Hohfeld's previously unseen personal papers, shedding new light on the complex motivations behind Hohfeld's projects. Together, these selected papers and original essays reveal a portrait of a multifaceted and ambitious intellectual who did not live long enough to see the impact of his ideas on the study of law.