Highlights
In recent years, a number of scholars have offered theoretical perspectives on equity that seek to identify its character and purpose as a distinctive element of the legal system. In this paper, I take stock of this recent work, asking what about equity it illuminates and what it leaves unexplored. I then assess the prospects of building on recent theoretical work to set out a general account of equity that both describes the practice in all its dimensions and shows the practice to be normatively desirable in light of political and moral ideals. I suggest that such a general account is likely to show that the idea of equity departs in profound ways from the usual preoccupations of private law.
[Blog post] Rethinking Relational Architecture: Interpersonal Justice Beyond Private Law
Private law is often said to be distinctive in a certain sense: it is about ‘interpersonal justice’. But consider the following: Antony Duff says criminal law is to be understood in a certain relational way. Kristen Rundle says that the Fullerian ideal of the internal morality of law concerns certain relations between the lawgiver and law subject. Avihay Dorfman argues that there are relational aspects of many public law duties. If there is any meaningful use of the relational architecture in these domains, it must extend beyond the vision offered by what is traditionally known as the ‘bipolarity’ thesis in private law.
Do Doctors have a Right to Perform Medically Unneccessary Genital Operations on Minors?
In the United States, UK, and Australia in recent years, criminal proceedings have been brought against members of a small immigrant Muslim community that practices, for religious reasons, both male circumcision for boys and ‘ritual nicking’ of the vulva for girls. Only the procedure for girls has been considered illegal. Defenders of these practices assume that parents have a right to authorize, and doctors to perform, religious rituals involving genital cutting or tissue-removal on non-consenting (e.g., prepubertal) minors. Opponents claim that temporarily non-autonomous persons of all sex characteristics or gender designations have a right to ‘genital integrity’ that is violated by any genital interference that is not urgently medically necessary. This seminar will review the ongoing legal and ethical debates in this area and point to key areas requiring further attention.
The Marex Tort: A Nascent or Unnecessary Tort?
Where a defendant (D) induces a third party (T) to act in a way that contravenes the terms of a court order granted in favour of a plaintiff (P) in an action brought by P against T, does D commit a tort that arises by analogy with the wrong of inducing breach of contract? In the United Kingdom, there is growing support— among those on the bench and at the bar—for such a view. But such support ignores a number of juridical hurdles that, in different ways, all stand in the way of portraying the action as a valuable addition to the tort law canon. Prime among these is the fact that court orders do not ordinarily invest winning plaintiffs with rights against T that are infringed when D induces T’s non-compliance with the court order. T is placed under a duty; but it is a duty owed to the court. All that D induces, then, is a contempt of court, but not a private law wrong done by T to P.