Avihay Dorfman

Freedom of Religion

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.

Copyright as Tort

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.

Property and Collective Undertaking: The Principle of Numerus Clausus

In this article, I seek to reclaim for property theory the legitimation concern that is the kernel of the principle of numerus clausus (which is a restriction that means that it cannot be up to private persons to create new forms of property right, but only to trade rights that take existing forms). I advance two general claims. First, functional accounts of this principle cannot but fail adequately to explain it. Second, the numerus clausus can be cast into sharp relief by elaborating the legitimation question that captures its moral centre - that is, a concern about how political authority is possible in the context of legislating new forms of property right. I insist, in this regard, that the conception of political legitimation that characterizes the creation of novel forms of property right is that of democratic self-governance.

Against Market Insularity: Market, Responsibility, and Law

In this paper, I take stock of some leading attempts to drive a wedge between distinctively market reasoning and practical (including moral) reasoning. Although these attempts focus on different normative foundations — the epistemology of market interaction, the autonomy of its participants, the stability-enhancing quality of markets, and the authority of democratic decision-making — they are of a piece insofar as they seek to trivialize the role of private responsibility for realizing the demands of morality and justice. Essentially, they seek to insulate, at least to an important extent, the market practice of doing well from the demands of doing right. I argue that they each fail, and that their respective failures motivate the pursuit of a more successful conception of the interaction between markets and morality. I argue that the key to developing this conception is law and, in particular, the legal forms of interaction that lie at the center of economic markets. Rather than merely facilitating any number of desirable goals, these legal forms construct the moral landscape within which market participants act. This observation opens the door for a better account of the ineliminable place of moral responsibility in and around the market.

Negligence and Accommodation

Whereas the Restatement of Torts as well as leading economic and justice-based approaches to the explanation of the standard of reasonable care advocate symmetric measurement of reasonable care across the defendant/plaintiff distinction, this article demonstrates that, in fact, the law applies this standard asymmetrically. Defendants are expected to discharge an objectively-fixed amount of care, whereas plaintiffs are for the most part assessed by reference to a subjective measurement of reasonable care. Normatively, I argue that an asymmetric assessment of care, because it combines an unfavorable assessment of defendant’s negligence with a favorable assessment of plaintiff’s negligence, means that the victim gets to fix the terms of the interaction between them. This way of proceeding resonates well with a powerful egalitarian idea of accommodating, rather than overlooking, relevant differences — that is, treating the plaintiff and the defendant differently is necessary for the duty of reasonable care to give effect to the qualitative difference between the life and limb of the former, on the one hand, and the autonomy of the latter, on the other. Asymmetric assessment of due care, I argue, is the doctrinal metric by which the law determines what it is for the plaintiff and the defendant to relate as equals given that difference, which is to say to relate as substantively equals.

Assumption of Risk, After All

Abstract Assumption of risk - the notion that one cannot complain about a harmful state to which one has willingly exposed oneself - figures prominently in our extra-legal lived experience. In spite of its deep roots in our common-sense morality, the tort doctrine of assumption of risk has long been discredited by many leading tort scholars, restatement reporters, courts, and legislatures. In recent years, however, growing concerns about junk food consumption, and about obesity more generally, have given rise to considerations that are traditionally associated with the principles underlying the doctrine of assumption of risk. Against this backdrop, I shall advance two claims: one negative and the other affirmative. The negative claim is that the major objections to the doctrine of assumption of risk are either misplaced or overblown. And affirmatively, I argue that this doctrine (properly reconstructed to reflect liberal-egalitarian intuitions) can provide an illuminating framework with which to address pressing social concerns such as the one associated with junk food’s harmful side-effects

Foreseeability as Re-Cognition

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.

The Property Gap: Private Ownership, Trespass, and the Form/Function Mismatch

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.

The Case Against External Explanations of Tort Law: Can Antecedent Values Divine the Deep Structure of Tort Law?

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.