Just what the doctrine ordered?
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.
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.
|Keywords||Battery; false imprisonment; vindication|
|Publisher||London South Bank University|
|Accepted author manuscript|
File Access Level
|09 Sep 2016|
|Publication process dates|
|Deposited||01 Aug 2017|
|Accepted||08 Sep 2016|
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