Just what the doctrine ordered?

Conference paper

Weaver, M. (2016). Just what the doctrine ordered? Society of Legal Scholars Annual Conference 2016. St. Catherine's College, Oxford 06 - 09 Sep 2016 London South Bank University.
AuthorsWeaver, M.
TypeConference paper

The prototypical normative intuition against direct physical interferences underlies the trespassory torts and is entrenched in current tort law doctrine. That such interferences are actionable without proof of damage distinguishes these torts from the compensation-dominated mainstream and requires explanation (found in: psychology; legal history; and Maine’s ‘interstices of procedure’) and justification (found in vindication and deterrence). Trespass doctrine instantiates Schauer’s ‘presumptive formalism’—a legal-systemic analogue of Kahneman’s ‘fast thinking’. But—as the analysis of direct acts, intention, harm, standing and the available forms of redress demonstrates—trespass doctrine is both over and under inclusive. Consequently, it is sometimes manipulated by means of intra-systemic ‘slow thinking’. Furthermore, occasionally extra-systemic review from standpoints outside the citadel of doctrine seems appropriate. Choosing between these modes entails difficult issues of judgement. Because the argument draws from several disciplines, the lengthy text can show only the tip of the several conceptual icebergs. Hence extensive references are provided, which (together with the additional, and optional, endnotes) give some indications of what lies beneath the waterlines.

KeywordsBattery; false imprisonment; vindication
PublisherLondon South Bank University
Accepted author manuscript
File Access Level
Publication dates
Print09 Sep 2016
Publication process dates
Deposited01 Aug 2017
Accepted08 Sep 2016
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