Hanoch Dagan

Hanoch Dagan
University of California, Berkeley | UCB · School of Law

Professor
Distinguished Professor of Law and Academic Director, Berkeley Center for Private Law Theory

About

169
Publications
5,922
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929
Citations

Publications

Publications (169)
Chapter
What makes private law private? What is its domain? What are the values it promotes? Relational Justice: A Theory of Private Law addresses these foundational questions in a robust analysis of the key doctrines of private law, including torts, contracts, and restitution. Discarding the vision of private law as a bastion of negative duties of non-int...
Chapter
The trust—a highly popular mode of property-holding—is seen by many as the most important innovation of the law of equity. As such, it presents the jurist with numerous conceptual, doctrinal, and ethical challenges: in addition to being used towards the pursuit of good, it has also been used for ill, and the interaction of trusts law with other law...
Article
This Essay integrates two ambitions: to lay out new theoretical foundations for antidiscrimination law and to demonstrate the practical significance of these foundations to tackle instances of wrongful discrimination beyond the reach of the current legal regime. Concerning theory, we articulate an account of wrongful discrimination grounded in priv...
Article
The public nuisance tort is now in a critical stage of development, mostly in the United States but also in other jurisdictions, including civil law systems. It is becoming ever more consequential in practice and, at the same time, widely misunderstood by courts and scholars. Our ambition is to defend a private law theory of public nuisance. Contra...
Article
Poverty has so far been overwhelmingly understood as a state of distributive injustice. As a result, the debate in private law theory about the role of private law in alleviating poverty has essentially collapsed into the question of whether private law could, and should, promote distributive justice. We challenge the terms of this debate and, in p...
Article
Choice of law can, and often should, be an important feature of an autonomy-enhancing law as it expands the possible frameworks within which people can govern their affairs. The theory of choice of law we develop in this article builds on three core notions that dominate existing doctrine: states, party autonomy and what we loosely refer to as ‘lim...
Chapter
The contributions to this edited volume engage with John Gardner’s philosophical work on private law. The volume is divided into three parts. The first part gathers contributions on general theoretical issues that bear upon private law. The second is concerned with Gardner’s well-known views on responding to wrongs and the justification of reparati...
Article
This article argues that a liberal theory of property rights can help us resolve a century old debate about a foundational aspect of the trust, namely, the nature of the beneficiary's interest. According to orthodoxy, the beneficiary has a (weak form) of proprietary right to the trust res. But proponents of this view found it hard to defend it from...
Article
Contract and employment law have grown apart. Long ago, each side gave up on the other. In this Article, we reunite them to the betterment of both. In brief, we demonstrate the emancipatory potential of contract for the law of work. Today, the dominant contract theories assume a widget transaction between substantively equal parties. If this were a...
Article
Full-text available
Stefan Grundmann, Hans Micklitz, and Moritz Renner’s New Private Law Theory: A Pluralist Approach is a wide-ranging, ambitious, and fascinating project. In this article I offer one way to read the NPLT as a mosaic, rather than a patchwork, by first taking seriously the idea of legal theory as the core of NPLT’s methodological commitments, and secon...
Article
Full-text available
This article develops a theory of just contractual relationships for a liberal society. As a liberal theory, our account is premised on liberalism's canonical commitments to self-determination and substantive equality. As a theory of contract law, it focuses on the parties’ interpersonal interactions rather than on the justice (or welfare) of the s...
Article
Contract is one of the key tools liberal law employs in the service of its core mission of enhancing people’s autonomy, and choice theory conceptualizes this task as contract’s telos. It thus prescribes three principles – proactive facilitation, regard for the future self, and relational justice – for guiding the legal constitution of contract law...
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Full-text available
This article studies relational contracts whose performance implicates the person of the promisor (as where the promisor is the promisee’s employee). We investigate whether people’s beliefs that their and others’ personalities are relatively malleable (or not) correlate with their tendency to engage in such long-term contracts. Our survey experimen...
Article
The mission of justice for contracts seems to be solely one of gatekeeping. As long as the justice of the bargaining stage is secured and the parties’ agreement complies with a proper floor of legitimacy, contract law, on this conventional approach, must simply follow the parties’ preferences. Doctrines that govern contractual performance and breac...
Article
Modern contract law accords considerable significance to the basic assumptions on which a contract is made. It thus takes to heart a failure of a belief whose truthfulness is taken for granted by both parties. Where the failure results from the parties’ mistake at the time of formation, “the contract is voidable by the adversely affected party,” if...
Article
Full-text available
In ‘The Choice Theory of Contracts’, we advance a claim about the centrality of autonomy to contract. Since publishing Choice Theory, we have engaged dozens of reviews and responses; here, we reply to Robert Stevens, Arthur Ripstein, and Brian Bix. All this rigorous debate confirms for us one core point: contract’s ultimate value must be autonomy,...
Book
Property enhances autonomy for most people, but not for all. Because it both empowers and disables, property requires constant vigilance. A Liberal Theory of Property addresses key questions: how can property be justified? What core values should property law advance, and how do those values interrelate? How is a liberal state obligated to act when...
Chapter
The book provides a broad and topical perspective of the sources of modern contract law. It examines the creation of contract law as a multi-pronged occurrence that involves diverse types of normative content and various actors. The book encompasses both a classical perspective on contract law as a state-created edifice and also delves into the set...
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Full-text available
A Review of Justice in Transactions: A Theory of Contract Law. by Peter Benson.
Article
Private law theories tend to narrowly delineate their ambitions: many theories limit private law’s normative aspirations to a circumscribed set of liberalism’s core commitments, restrict its horizons to the boundaries of the state, and marry its norms with only one type of legal institution (courts). These limited ambitions, we argue in this articl...
Article
I. Introduction In The Choice Theory of Contracts,¹ we develop a liberal theory of contract law. One core task of the book was to persuade advocates of economic analysis that they must situate their enterprise within our liberal framework. Autonomy, rightly understood, is the telos of contract. Oren Bar-Gill pushes back strongly in his essay, Choic...
Article
In “The Choice Theory of Contracts,” we explain contractual freedom and celebrate the plurality of contract types. Here, we reply to critics by refining choice theory and showing how it fits and shapes what we term the “Contract Canon”. I. Freedom. (1) Charles Fried challenges our account of Kantian autonomy, but his views, we show, largely converg...
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Full-text available
Review of Eric A. Posner's Radical Markets: Uprooting Capitalism and Democracy for a Just Society.
Article
The emergent European Regulatory Private Law (ERPL) can be interpreted as a set of instruments in the service of collectivist aims, and thus a radical departure of EU law from private law; but it need not. This article offers a competing interpretation of the three core pillars of ERPL: its reliance on the notion of regulated autonomy, its endorsem...
Article
More than one hundred executive departments and agencies operate through systems of regional offices strategically located around the country. Currently, these regions are misguidedly viewed as mere enforcers and implementers of central policies. We propose two alternative visions of federal regions—regions as mediators and regions as coordinators....
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Full-text available
This article argues that contemporary accounts of justice miss a relational dimension of justice, which focuses on the terms private individuals’ interactions must meet for them to constitute relationships among equal, self-determining persons. The article develops the argument that the justice requirement to respect others as substantively free an...
Article
The most important promise of the legacy of legal realism is its robust understanding of law, which is irreducible to one or another more or less familiar jurisprudential school, as a set of institutions distinguished by the difficult accommodation of three constitutive yet irresolvable tensions: between power and reason, between science and craft,...
Article
Full-text available
There is a widespread view that one does either theory or empirical work, and that theory and empiricism represent distant concerns, opposing worldviews, and perhaps distinct mentalities or personalities. This prevalent view has deep roots and is also the result of pragmatic and understandable tendencies toward division of intellectual labor. Again...
Article
New legal realism (NLR) furthers the legal realist legacy by focusing attention on both the pertinent social science and the craft that typifies legal discourse and legal institutions. NLR's globalized ambitions also highlight the potential of a nonstatist view of law. The realist view of law raises three challenges facing NLR: identifying the “lin...
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Full-text available
For private property to be legitimately recognized as a universal human right, its meaning should pass the test of self-imposability by an end. In this Essay, we argue, negatively, that the prevailing (libertarian) understanding of private property cannot plausibly meet this demanding standard; and develop, affirmatively, a liberal conception which...
Book
This concise landmark in law and jurisprudence offers the first coherent, liberal account of contract law. The Choice Theory of Contracts answers the field's most pressing questions: what is the 'freedom' in 'freedom of contract'? What core values animate contract law and how do those values interrelate? How must the state act when it shapes contra...
Book
Modern statesmen and political theorists have long struggled to design institutions that will simultaneously respect individual freedom of religion, nurture religion’s capacity to be a force for civic good and human rights, and tame religion’s illiberal tendencies. Moving past the usual focus on personal free expression of religion, this illuminati...
Chapter
Modern statesmen and political theorists have long struggled to design institutions that will simultaneously respect individual freedom of religion, nurture religion's capacity to be a force for civic good and human rights, and tame religion's illiberal tendencies. Moving past the usual focus on personal free expression of religion, this illuminati...
Chapter
The distinction between status and contract permeates legal analyses of categories of cooperative interpersonal interactions in which one party has particular obligations to the other. But the current binary understanding of the distinction has facilitated its use as a foil and thus undermined its conceptual and normative significance. This predica...
Article
The emergent European Regulatory Private Law (ERPL) can be interpreted as a set of instruments in the service of collectivist aims and thus a radical departure of EU law from private law; but it need not. This article offers a competing interpretation of the three core pillars of ERPL: its reliance on the notion of regulated autonomy, its endorseme...
Article
This article uses Robert Nozick's account of utopia as a framework for utopias to examine the normative underpinnings of private law. Nozick's insight, I argue, points to private law's irreducible role in upholding individual self-determination and reveals its function in vindicating a robust conception of relational justice. These underpinnings ar...
Article
Scholars traditionally conceptualize private law around a commitment to the values of formal freedom and equality. Critics of the traditional view (including lawyer-economists) dispute the significance of a distinction between public and private law, construing private law as merely one form of public regulation. Both positions are flawed. The trad...
Article
Essential resources do more than satisfy people’s needs. They ensure a dignified existence. Since the competition for essential resources, particularly fresh water and arable land, is increasing and standard legal institutions, such as property rights and national border controls, are strangling access to resources for some while delivering prosper...
Article
The distinction between status and contract permeates legal analyses of categories of cooperative interpersonal interactions in which one party has particular obligations to the other. But the current binary understanding of the distinction has facilitated its use as a foil and thus undermined its conceptual and normative significance. This predica...
Article
Properly understood, private law establishes ideal frameworks for respectful interactions between self-determining individuals, which are indispensable for a society where all recognize one another as genuinely free and equal agents. Only private law can form and sustain the variety of frameworks necessary for our ability to lead our chosen concept...
Article
There is a widespread view that one does either theory or empirical work, and that theory and empiricism represent distant concerns, opposing world-views, perhaps distinct mentalities or personalities. This prevalent view has deep roots, and is also the result of pragmatic and understandable tendencies toward division of intellectual labor. As agai...
Article
For private property to be legitimately recognized as a universal human right, its meaning should pass the test of self-imposability by an end. In this Essay we argue, negatively, that the prevailing (libertarian) understanding of private property cannot plausibly face this demanding standard and, affirmatively, develop a liberal conception which h...

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