bluuebunny/crossref_metadata_2025 huggingface dataset:
Bowels and Constipation
Authors: Ahlskog J. Eric
Published: November 2020

Constipation is common among older adults, in general. However, it is very common among people with Lewy body disorders, and the reason is dysautonomia. Lewy body disorders tend to impair control of gut motility by the autonomic nervous system. At the stomach level, bloating may develop when the stomach fails to empty into the upper small intestine. At the other end, constipation is the consequence of Lewy processes affecting motility in the colon. Colon motility (peristalsis) is what moves the remnants of digested food (stool) to the rectum for expulsion. These regions are shown in Figure 15.1. Drugs that block the neurotransmitter acetylcholine are notorious for worsening constipation; these include medications used to treat urinary urgency (overactive bladder). All of the anticholinergic drugs for bladder overactivity that were listed in Table 12.1 cause constipation, as does another bladder drug, trospium (Sanctura). The tricyclic drugs for depression shown in Table 12.1 have variable anticholinergic properties and also tend to be constipating. One needs to balance benefits against the side effect of constipation if considering these medications. In the setting of DLB or PDD, constipation is typically due to autonomic nervous system dysfunction, often exacerbated by medication side effects. However, there are exceptions and the primary care clinician or internist should consider whether colonoscopy is appropriate. This procedure involves inserting a scope into the anus and then advancing the instrument to visualize the entire colon. In this way hidden colon cancers are detected before they become deadly. It is common knowledge that several natural remedies help prevent constipation: fruits, vegetables, fluids, and fiber. Individuals with constipation should make sure that their diet includes adequate fruits, which make a good snack. Meals should include vegetables, such as green beans, peas, and squash; catsup and potatoes do not count as vegetables. Intake of six to eight tall glasses of water, juice, or other fluids may help maintain moisture in the stool, making it easier to pass. Finally, fiber needs to be included in the diet in order to give the stool bulk. These strategies are often insufficient for persons with Lewy disorders, and additional measures are often necessary.
Principles of Mathematical Petrophysics
Authors: Doveton John H.
Published: November 2020

The pioneering work of Gus Archie moved log interpretation into log analysis with the introduction of the equation that bears his name. Subsequent developments have mixed empiricism, physics, mathematical algorithms, and geological or engineering models as methods applied to petrophysical measurements in boreholes all over the world. Principles of Mathematical Petrophysics reviews the application of mathematics to petrophysics in a format that crystallizes the subject as a subdiscipline appropriate for the workstations of today. The subject matter is of wide interest to both academic and industrial professionals who work with subsurface data applied to energy, hydrology, and environmental issues. This book is the first of its kind, in that it addresses mathematical petrophysics as a distinct discipline. Other books in petrophysics are either extensive descriptions of tool design or interpretation techniques, typically in an ad hoc treatment. It covers mathematical methods that are applied to borehole and core petrophysical measurements to estimate rock properties of fluid saturation, pore types, permeability, mineralogy, facies, and reservoir characterization. These methods are demonstrated by a variety of case studies and summaries of applications. Principles of Mathematical Petrophysics is an invaluable resource for all people working with data related to petrophysics.
Legal and Ethical Considerations
Authors: Melson Kenneth E.
Published: November 2020

The legal system, in both the criminal and civil arenas, may well be revolutionized by the advent of forensic DNA typing. One state trial judge has written that DNA typing “can constitute the single greatest advance in the ‘search for truth,’ and the goal of convicting the guilty and acquitting the innocent, since the advent of cross examination.” People v. Wesley, 140 Misc.2d 306, 533 N.Y.S.2d 643 (Co. Ct. 1988). A prominent professor in the field of law and forensic sciences believes that “DNA analysis will be to the end of the 20th century what fingerprinting was to the 19th.” The Washington state legislature has found the accuracy of DNA identification to be superior to that of any presently existing technique, and the Maryland General Assembly has proclaimed DNA identification to have been refined to a level of scientific accuracy that approaches an infinitesimal margin of error. Indeed, the forensic applications of DNA typing are limited only by the circumspection of the criminal mind. Regardless of the type of crime committed, whenever trace evidence appropriate for DNA analysis is left behind by the perpetrator and later recovered by the police, the test results can be an important investigative tool. Most frequently, such evidence will be found as a result of violent crimes. With 92,490 rapes and 20,680 homicides in the United States in 1988, the forensic application of DNA typing should significantly increase the arrest and conviction rates. The use of DNA typing is not confined to those cases in which body fluids, hairs, or tissue are left at the crime scene or on the victim by the perpetrator, thereby connecting a suspect to the scene or victim. Just as common is the situation where evidence is left by a victim on the suspect or the suspect’s belongings, which will establish previous contact between the accused and the victim. The Joseph Castro case is an example of this situation. He was accused in New York of stabbing to death a 20-year-old woman who was seven months pregnant and her 2-year-old daughter.
Political Music in Turkey
Authors: Avcı Mustafa
Published: November 2020

Since the founding of the Turkish republic, music has been viewed and used as a nation-building tool by the state. Respectively, music has also been considered an instrument of opposition from the very beginning. This opposing character has expanded and diversified its vocabulary with a socialist and leftist tone over time, especially in the 1960s. During the end of the decade, we also see the emergence of Kurdish political music. During the early 1970s, Turkey witnessed the burgeoning of the ultranationalist music called Ülkücü music. While the 1980 military coup silenced all the dissident voices and music, musicians who received asylum from European countries continued creating music in exile. Leftist music after the military coup witnessed a popularization in the band music influenced by the Latin American musical genre Nueva canción, and solo musician Ahmet Kaya pioneered the leftist protest song scene. Kurdish political music bands called koms emerged by the end of the 1980s and became more prevalent during the 1990s. The 2000s saw the deradicalization, individualization, and depoliticization of overtly political musics in general. However, with the overpoliticization of the country during the Adalet ve Kalkınma Partisi regime, the dissident elements of protest music have also become dispersed into a wide variety of genres with a more moderate tone.
A Sociology of Knowledge on Humanitarianism and Displacement
Authors: Carpi Estella , Fiddian-Qasmiyeh Elena
Published: November 2020

In this chapter, the authors endeavor to build a sociology of knowledge of studies conducted on humanitarianism and war-induced displacement in the Middle East region, considering the cases of Lebanon, Jordan, Egypt, and Turkey in particular. A comparative analysis suggests that similarities and differences across the literature are not always motivated by specific forms of state governmentality. In this framework, postcolonial history seems to provide partial explanations. As a result, the displacement and humanitarianism literature need to transcend the state paradigm and focus on a larger variety of social and political factors. While most scholars have examined the work of the United Nations and of international institutions in the region, the authors highlight the need to learn from multilingual literature, especially that produced in the Global South, and from a deeper investigation of the principles and modalities of crisis management developed by actors from the Global South.
India and Peaceful Change
Authors: Pardesi Manjeet S.
Published: November 2020

In spite of India’s self-conception as a uniquely peaceful state and civilization, it has been involved in a number of wars and militarized crises. Nevertheless, the Indian leadership has genuinely aspired to the pursuit of peaceful change in international politics. This chapter explains why India has pursued various peaceful strategies at different points in its modern history. More specifically, five strategies of peaceful change pursued by India are analyzed here: India’s decolonization and independence, the pursuit of the policy of Panchsheel or the Five Principles of Peaceful Coexistence with China, the advocacy of nuclear disarmament, India’s “Look/Act East” strategy, and region transformation through the idea of the “Indo-Pacific.” Two limited generalizations can be drawn from the Indian experience. First, peaceful change needs to be understood as a process as opposed to an event, as both India and the targets of such peaceful strategies mutually respond to the other side’s endeavors (while also pursuing other goals in world politics). Second, the process of peaceful change requires that the momentum of peaceful strategies be maintained over time as peaceful change emerges out of an interaction of fortuitous structural factors and conscious agential strategies. The chapter concludes by noting that rising Hindu nationalism will create challenges for any Indian attempt at peaceful change due to the links between domestic politics and foreign policy.
Hate in language, Hate and Language
Authors: Russell Eric Louis
Published: November 2020

This chapter examines the concept and practice of hate speech, the linguistic expression of animus directed at salient persons or groups. The chapter begins by attending to the difficulty of defining hate speech, as well as a review of scholarship wrestling with related questions. This emerges as a performance of animus, one that is both recitational and constructive, and exists in a complex ecology of sociocultural relations that are made real through language form, structure, and functional patterns. Subsequent sections look to the complex linguistic practice of hostility, using the example of Flemish right-wing populist Filip Dewinter and the Vlaams Belang in Belgium. Building on prior studies, a series of discourse strategies are identified and examined, which serve to express overt Islamophobia and covert homophobia, masked by a veneer of pinkwashing. A final section attends to questions of disruption and the charge of critical language scholarship.
An Evolutionary Perspective on Mental Time Travel
Authors: Suddendorf Thomas
Published: November 2020

This article examines the nature and evolution of mental time travel. Evidence for capacities in other animals is reviewed and evaluated in terms of which components of the human faculty appear to be shared and which are unique. While some nonhuman animals store episodic memory traces and can display a range of future-directed capacities, they do not appear to share the open-ended ability to construct mental scenarios, to embed them into larger narratives, nor to reflect and communicate on what they entail. Nested scenario building and the urge to exchange mental experiences seem to set human minds apart in this context as in many others. The article ends with a discussion of the archeological evidence for mental time travel, focusing on deliberate practice as an example of its tremendous fitness consequences.
Synthetic and Literary Readings of Chronicles and Ezra-Nehemiah
Authors: Schweitzer Steven J.
Published: November 2020

This essay discusses synthetic and literary readings of Chronicles and Ezra-Nehemiah, with particular attention to the literary relationship between the two books, analysis of each book’s narrative unity and redactional processes, and their use of sources. A series of related topics that have received considerable scholarly attention—for example, mixed marriage, foreigners, Samari(t)ans, and identity formation—illustrate the differences between Chronicles and Ezra-Nehemiah and how interpretation is aided by nuanced methodological approaches to complex issues. The essay concludes with discussion of how analysis of these books using utopian literary theory might create new interpretative possibilities for continued research, especially from a literary perspective.
Divine and Human Violence in the Historical Books
Authors: Earl Douglas S.
Published: November 2020

It has become commonplace to characterize the historical books using the concept of violence and to regard this characterization as posing a problem demanding a solution, usually repudiation of the texts. This article indicates that “violence” is an interpretative concept supplied by readers and that such characterization was absent prior to the 1990s. The nature of the concept of violence is then analyzed, and the article argues that it has rhetorical and ideological force to urge the repudiation or rejection of what is described as violent. With reference to the historical books, the label of violence as an overall interpretative lens is used ideologically to block appreciation and appropriation of the texts and the traditions that they represent. Thus it should not be readily accepted by Jewish and Christian readers. However, localized use of the concept can bring into focus some of the interpretative issues and challenges concerning particular stories.
Achaemenid Political History and Sources
Authors: Kuhrt Amélie
Published: November 2020

This article provides an outline of the Achaemenid empire’s political history followed by an overview of the diverse sources for understanding some of its institutions. Despite inherent difficulties, the sources allow scholars to reconstruct vital aspects, such as the provincial system, variations in the way different provinces were managed, the “king’s law,” Persian religion, and the strength of central control which held the imperial regions together. The chapter ends with a consideration of the king’s position and royal ceremony and ideology.
Biblical Interpretation and Kyriarchal Globalization
Authors: Fiorenza Elisabeth Schüssler
Published: November 2020

Feminist biblical studieaas engage both wo/men and gender studies for their work, but the feminist analysis is not identical with and cannot be limited to gender studies. Rather, feminist biblical studies needs to focus on issues of power and structures of domination in light of wo/men’s struggles against kyriarchal relations. Accordingly, feminist biblical studies are social-cultural-political studies of domination, exploring how the Bible and biblical interpretation function and are shaped in the context of global kyriarchal neoliberalism. If the analytic object of feminist theory and biblical studies is not simply woman or gender in the Bible but the intersectionality of domination—of kyriarchy (from the Greek kyrios for “lord, master, legal guardian” and archein for “to rule, dominate”), the object needs to be understood in terms of the ontology of kyriarchal power. Kyriarchal relations of domination are characteristic of the ancient biblical worlds and are still at work today in the multiplicative intersectionalities of class, race, gender, ethnicity, empire, and other structures of exploitation. Hence, biblical interpretation must not only be practiced in terms of its content but also in terms of its function in global neo-liberalism, which is not only a theory of market relations but also a theory of human relations. We are encouraged to think not only of our work but also of our lives in economic terms in global neoliberal societies. These societies are characterized by xenophobic reactions against displaced populations and strangers, the threat of global warming, political polarization, unemployment, poverty, and centuries of exploitation, as well as by the devaluation of societal equality and democratic multiplicity.
Queer Bible Readings in Global Hermeneutical Perspective
Authors: Punt Jeremy
Published: November 2020

Queer readings of the Bible are indebted to feminist interpretation but work with a broader and more fluid notion of sex and gender than feminism. Not exhausted by them, queer biblical interpretations typically revolve around two distinct emphases, “queering” or investigations into the social construction of sex and gender, and “queerying” which traces the theoretical and political interests of such constructions, and their involvement in social dynamics and power. This essay explains queer biblical interpretation by showing that queer theory (de)constructs sex and gender; unravels established notions of fixed identity; contests heteronormativity; becomes indecent; outwits or goes beyond ascribed sex and gender; and queers biblical reception. Queer theory exposes sex and gender as powerful systems of convention that require, define, and even prescribe the form and function of sex and gender.
Bathsheba in Contemporary Romance Novels
Authors: Koenig Sara M.
Published: November 2020

The biblical texts about Bathsheba have notorious gaps, even by the laconic standards of Hebrew narrative. Post-biblical receptions of the story flesh out the terse chapters of 2 Samuel 11–12 and 1 Kings 1–2, ascribing feelings and motives to Bathsheba and David that are not contained in the Hebrew text. This essay examines the intersection of reception history and feminist biblical scholarship by considering eleven novels about Bathsheba from the twentieth and twenty-first century. These novels expand Bathsheba’s character beyond the text, but in fairly gender stereotypical ways, such that feminist readers of the novels may be left wanting more.
Ezekiel among the Prophetic Tradition
Authors: Klein Anja
Published: November 2020

This chapter presents an overview of the major topoi of prophecy in the book of Ezekiel with the question: To what extent do the authors in Ezekiel participate in the Hebrew Bible’s prophetic tradition? While the first part focuses on the major figures in the book (the people, the prophet, and God), the second part surveys examples of Yhwh’s action in history (judgment, ethics, and salvation). The chapter concludes that the book’s authors draw in great measure upon prophetic tradition—which they takea up, interpret, and continue in their own writings. The book thus proves to be part of an inner-prophetic discourse that firmly locates Ezekiel as an heir to the prophetic tradition.
Toward the Codification of Thunderstorm/Downburst Winds
Authors: Kwon Dae Kun , Kareem Ahsan , Solari Giovanni
Published: November 2020

Non-synoptic winds often exhibit rapid changes during a short period, which may be accompanied by changes in direction. This introduces non-stationarity both in the mean and the standard deviation of wind fluctuations. Thus, design loads in non-synoptic non-stationary winds obtained from conventional analysis frameworks included in codes and standards, such as the gust loading factor approach, may not be appropriate, thus calling for a careful examination of traditional design procedures. This chapter reviews a proposed design procedure for non-synoptic non-stationary winds. In particular, a codification of gust front winds originating from thunderstorms and downbursts is discussed because the event occurs frequently and is well-known to exhibit significant non-stationary characteristics. Two major frameworks reported in the past literature, such as the gust front factor and the thunderstorm response spectrum technique, are examined as a step toward the codification of gust front winds. In addition, a comparison is made between the two frameworks to assess their performance. Finally, a living codification concept through learning and updating invoking the emerging “design thinking” approach is discussed.
(Bio)technology, Identity, and the Other
Authors: Gotlib Anna
Published: November 2020

This chapter offers a critical analysis of the place that evolving technologies (and especially bio-technologies) are beginning to occupy in our ideas about who we are and who we might become. This chapter’s general claim is that we cannot consider the nature, function, and role of technology without taking account of its impact on personal and group identities, and especially the identities of vulnerable others. The chapter addresses the difficult questions about how the impacts of emerging technologies, while in many ways positive, can also be sources of further othering of already vulnerable populations, and how the promise of human progress through enhancement (including everything from novel biomedical treatments and all the way to artificial intelligence and transhumanism) can also lead to a deepening liminality of the oppressed. The direction in which we ought to be heading as a technological species, the author suggests, should be motivated as much by considerations of identity-constituting effects of technological innovations as by the adventurism of techno-evolution itself.
Adapting Regulation to Globalization: A Typology of Approaches to the Internationalization of Regulation
Authors: Kauffmann Céline
Published: November 2020

With the progressive emergence of an open, dynamic, and globalized economy, the internationalization of rules has become a critical issue. Governments increasingly seek to exploit the benefits of globalization by eliminating unnecessary regulatory divergences and barriers and ensuring greater coordination of regulatory objectives. Intensification of global challenges, such as those pertaining to systemic risks (financial markets), the environment (air or water pollution), human health (COVID-19 pandemics) and safety, is also leading to growing regulatory cooperation efforts as a key component of risk management strategies across borders. Regulation increasingly transcends its domestic nature to become transnational and international through a wide variety of mechanisms. At the same time, concerns over the loss of sovereignty and perceived negative impacts of openness are constraining greater regulatory cooperation. This chapter explores the range of possible approaches to the internationalization of regulation and provides evidence on their use, merits, and challenges, building on OECD work on international regulatory cooperation.
Internal and External Perspectives
Authors: Gold Andrew S.
Published: November 2020

This chapter reviews several recent themes in New Private Law scholarship. Some New Private Law scholarship is functionalist at its core, yet it makes use of the internal point of view to show how private law can function successfully. Understanding the internal point of view on doctrinal categories and concepts can help to clarify how those categories and concepts are useful. Such inclusive functionalist theories may show how private law’s deontological concepts motivate regulated parties, or how their modularity permits law to address problems of complexity. Indeed, nonfunctionalist approaches may also show an external orientation while taking the internal point of view as a starting point.Other New Private Law scholarship is interested exclusively in providing correct understandings of law from the internal point of view. Such internalist accounts may nonetheless draw from external perspectives and methods in an effort to develop adequate interpretive criteria. Moreover, the application of these interpretive criteria may lead to substantive theories of tort, contract, fiduciary relationships, or property that are partly comprised of classically functionalist understandings.Interestingly, New Private Law theory also incorporates hybrid accounts; these mixed approaches take different forms. A good example is the kind of theory permitted by a moderate transparency criterion: a theory that is “in the right ballpark.” These multiple approaches in combination represent a genuine flowering of private law theory as a field of inquiry.
Autonomy and Pluralism in Private Law
Authors: Dagan Hanoch
Published: November 2020

This chapter addresses the significant subsets of private law—notably, but not only, property and contract—which contribute to people’s autonomy. It argues that private law is guided by an autonomy-enhancing telos. Indeed, private law, at its core, facilitates people’s self-determination and forms the foundation of a social life premised on the maxim of reciprocal respect for self-determination. Private law can enhance people’s autonomy because its fabric is not only made of duty-imposing doctrines. Rather, many of its rules—and, importantly, the two private law building blocks of property and contract—are essentially power-conferring. The normative powers instantiated by property law and by contract law allow people to have private authority over resources and to reliably benefit from others’ promises. They thus facilitate a temporally extended horizon of action, which is conducive, perhaps crucial, to people’s ability to plan. Moreover, contract and alienable property are also key for people’s mobility, which is a prerequisite for self-determination; and both expand the options available to individuals to function as the authors of their own lives. Such an autonomy-based private law must be structurally pluralist; multiplicity of property types and contract types facilitates the rich diversity of interpersonal relationships needed for adequate self-determination.
A Feminist Perspective
Authors: Bernstein Anita
Published: November 2020

Because private law reaches its results by relying on demands and denials that litigants articulate, this jurisprudence will necessarily shortchange persons who lack full prerogative to say what they want and do not want. Women exemplify this category, but the contention of this chapter can be extended mutatis mutandis to other subordinated classes. The chapter sketches two protagonists of private law—the individual who complains and the individual who resists another's demand—with reference to the self-regard that each needs to defeat the other in a private law action. Next it applies gender to the famed maxim volenti non fit injuria, a jurisprudential view that understands injury to exist only if it is denounced. To support its claim of gendered unjust enrichment, the chapter reviews documented barriers to the expression of self-interested protest that reduce what private-law litigation will deliver to women.
Torts
Authors: Goldberg John C. P.
Published: November 2020

In the United States and elsewhere, the Law and Economics movement has fundamentally reshaped how judges, lawyers, and law students understand tort law. And yet economic interpretations of tort law – as opposed to prescriptive analyses of tort problems that deploy economic methodologies – face insuperable difficulties. Why, then, do they endure? The answer is that some of the leading economic accounts actually manage to identify, albeit in a distorted way, many of tort law’s core features. In keeping with the emphasis of the New Private Law on analysis that is down-to-earth without being reductionist, this Chapter explains why these same features can be captured without distortion through an understanding of tort as a law of wrongs and redress.
Unjust Enrichment and Restitution
Authors: Burrows Andrew
Published: November 2020

This chapter examines the contrast between the English and U.S. approaches to the law of unjust enrichment—otherwise known as the law of restitution—over the last forty years. In England and Wales, no area of private law has been subjected to greater academic scrutiny in the last forty years than the law of unjust enrichment. The subject has spawned hundreds of law journal articles, scores of monographs and textbooks, and even the creation of a dedicated law review (the Restitution Law Review, first published in 1993). In contrast, and until the New Private Law movement, there appears to have been a decline of interest over the same period in the law of unjust enrichment/restitution in the United States. The chapter then focuses on a very specific legal question that has recently troubled the English courts—the meaning of “at the expense of”—to illustrate the English doctrinal approach epitomized in the writings of Peter Birks, and the most prominent recent challenge to it.
Corporations
Authors: Miller Paul B.
Published: November 2020

This chapter situates corporations and corporate law theory within the nascent New Private Law movement. Most theorists allied to the New Private Law focus on fundamental private law and so, in turn, bodies of law addressed to singular forms of interaction. Corporations and other compound structures — including trusts, companies, and partnerships — pose an important challenge and opportunity for interpretive theory carried out in the spirit of the New Private Law. These structures entail a compounding of singular forms of interaction with novel elements supplied by organizational law. In the chapter I argue for an integrative model of interpretive analysis of compound structures. I explain what an integrative model of the corporation might look like. I also offer an illustration of the model’s relative advantages by contrasting it with dominant reductive analyses that distort the corporate form by treating it as a mere extension of various singular forms of interaction found in contract, property, and fiduciary law. I offer reinterpretation of core elements of the corporate form — corporate personality, purpose, agency and fiduciary administration - and conclude by showing how an integrative approach promises to shed new light on these elements while revealing interpretive excesses of alternative renderings found in reductive theories of the corporation.
New Private Law and the Family
Authors: Brinig Margaret F.
Published: November 2020

This chapter focuses on family law. To the extent that legal academics have tried to capture family law systematically, they have typically used the framework, and sometimes specifically the language, of contract. The chapter argues that a more apt analogy, and one that can help explain the public/private division that is inherent in family law, is covenant. Covenant, in fact, may be one of the structural strands of private law, along with the more discussed contract, tort, and property. As a concept, it is of the same vintage, appearing early in the Book of Genesis, itself compiled from oral tradition. The chapter then discusses a New Private Law of the family. It also considers whether the family law of the United States is distinctive. There are several anomalies to the prevailing position on family in the United States compared to the rest of the modern world. One is that while human rights (of children) stand at the centerpiece of much of the world’s ideas about family law, the United States alone has not ratified the U.N. Convention on the Rights of the Child. Instead, the law of parent and child is based on parents’ rights. The second, also related to parental duties, is that compared to most other Western countries, the United States provides little public support for maintenance, childcare, and parental leaves.
Traditional Knowledge and Private Law
Authors: Okediji Ruth L.
Published: November 2020

Many proponents of traditional knowledge (TK) seek legal protection comparable to the bundle of exclusive rights afforded creators of knowledge goods in the conventional intellectual property (IP) system. This chapter argues that the nature of the harm caused by such misuse differs meaningfully from the interests with which standard intellectual property law is occupied. It maps how private law claims have been applied, notably in Australia, to address TK misuse and highlights formal adherence by courts to the boundaries of private law subjects. Important aspects of the problem, such as how TK misuse disables cultural mechanisms designed to foster the production of knowledge goods for sustainable growth in Indigenous communities, while also posing a risk to cross-border scientific research important for pressing public health and environmental challenges, however remain beyond private law’s reach.The chapter identifies three types of harm that flow from the misuse of TK: relational harm, communal harm, and developmental harm. For such harms, individual private property—and common property for that matter—offers limited recourse. The chapter reflects on other private law tools that could extend to TK and that offer protection well beyond IP rights, but all are without the classic welfare limits attendant to knowledge goods under the IP system. The misalignment of harms, claims and remedies point to sui generis regimes as a more meaningful prospect for regulating TK.
Privity
Authors: Gergen Mark P.
Published: November 2020

This chapter discusses privity rules. Privity rules in contract law prevented obligations created by a contract from protruding on third parties, while privity rules in tort law prevented obligations to third parties that might otherwise be imposed by tort law from “indenting” upon a contract. Contract no longer is an impregnable circle of obligation. But contract law still has a privity requirement that prevents a contract from protruding negatively on nonparties. Meanwhile, in tort law, the function of preventing negligence law from indenting upon a contract has devolved to rules that preclude a negligence claim for pure economic loss. Moreover, there are rules in property law and the law of restitution that perform the same functions as the old privity rules in contract law and negligence. These include bona fide purchaser rules in property law and rules in the law of restitution that preclude claims for indirect enrichment and that preserve the priority of contract as a mechanism for resolving problems of unjust enrichment.
The Rule of Law
Authors: Austin Lisa M.
Published: November 2020

This chapter argues that the relationship between private law and the rule of law has been underdeveloped, or ignored, by private law scholarship until recently. Indeed, until recently, there has been relatively little attention to what the rule of law, as a conceptual and critical framework, could bring to private law theory itself. Why this lacuna in the literature? The chapter offers two speculative reasons that take up some of the themes and concerns of the New Private Law. The first reason concerns the U.S. legal academy, while the second reason concerns private law theory in the commonwealth. The chapter then outlines potential critical pathways for reclaiming a rule-of-law perspective on private law that address some of the reasons for its underdevelopment. It also explains how a focus on the rule of law in general, and in relation to some of its specific commitments and virtues, provides an important critical lens in relation to understanding and responding to the way that private power operates in the twenty-first century within what can be called the “global data economy.”
Defenses
Authors: Stevens Robert
Published: November 2020

This chapter focuses on defenses. A considerable number of theories has grappled with the normative justification(s) for the various claims that arise in private law. This focus on the rights and powers in private law is understandable. After all, without a claim there is nothing much further to discuss. What has gone underexamined are the justifications for the various defenses that exist—the ways of resisting otherwise good claims. Defenses pose a challenge to any monist theory of private law. If private law, or a part of it, is all about efficiency or independence or utility or any other single thing, why not deal with all the elements of what justifies the plaintiff’s claim as an element of the cause of action? Why do people need defenses at all? Either the claim is justified or it is not. On the monist view of private law—that it is only concerned with One Big Thing—what is the need or role for any separate “defenses” that concern countervailing considerations? The chapter then describes what a defense is before looking at pleading and proof and distinguishing between justification and excuse. It also considers the form of reasons and details the general defenses, defenses in contract, defenses to torts, defenses in unjust enrichment, and equitable defenses.
Private and Public Law
Authors: Merrill Thomas W.
Published: November 2020

This chapter explores the relationship between private and public law. In civil law countries, the public-private distinction serves as an organizing principle of the entire legal system. In common law jurisdictions, the distinction is at best an implicit design principle and is used primarily as an informal device for categorizing different fields of law. Even if not explicitly recognized as an organizing principle, however, it is plausible that private and public law perform distinct functions. Private law supplies the tools that make private ordering possible—the discretionary decisions that individuals make in structuring their lives. Public law is concerned with providing public goods—broadly defined—that cannot be adequately supplied by private ordering. In the twentieth and twenty-first centuries, various schools of thought derived from utilitarianism have assimilated both private and public rights to the same general criterion of aggregate welfare analysis. This has left judges with no clear conception of the distinction between private and public law. Another problematic feature of modern legal thought is a curious inversion in which scholars who focus on fields of private law have turned increasingly to law and economics, one of the derivatives of utilitarianism, whereas scholars who concern themselves with public law are increasingly drawn to new versions of natural rights thinking, in the form of universal human rights.
Fiduciary Law
Authors: Wendel W. Bradley
Published: November 2020

This chapter assesses fiduciary law within the framework of private law theory. Fiduciary law and private law theory seem made for one another. Fiduciary law is centrally focused on the morally attractive end of maintaining relationships of trust and confidence among individuals. But it does so by bracketing highly abstract normative theory in favor of well-developed legal constructs such as duties of loyalty and care. It is comfortable with pluralism, complexity, and context-specificity. Moreover, it represents a rational structure that is not wholly dependent on external criteria yet does not aspire to strict independence from empirical considerations and normative values. Fiduciary law nevertheless poses some challenges for private law theory. As an evolving field, it may grow in unanticipated directions and risk the loss of its former coherence. The possibility of this loss of a coherent organizing structure has motivated considerable recent work in the theory of fiduciary law, and also in legal theory more generally, as scholars seek to understand how normative pluralism can coexist with stable, rational legal doctrine.
Law and Economics
Authors: Kelly Daniel B.
Published: November 2020

This chapter analyzes how law and economics influences private law and how (new) private law is influencing law and economics. It focuses on three generation or “waves” within law and economics and how they approach private law. In the first generation, many scholars took the law as a starting point and attempted to use economic insights to explain, justify, or reform legal doctrines, institutions, and structures. In the second generation, the “law” at times became secondary, with more focus on theory and less focus on doctrines, institutions, and structures. But this generation also relied increasingly on empirical analysis. In the third generation, which includes scholars in the New Private Law (NPL), there has been a resurgence of interest in the law and legal institutions. To be sure, NPL scholars analyze the law using various approaches, with some more and some less predisposed to economic analysis. However, economic analysis will continue to be a major force on private law, including the New Private Law, for the foreseeable future. The chapter considers three foundational private law areas: property, contracts, and torts. For each area, it discusses the major ideas that economic analysis has contributed to private law, and surveys contributions of the NPL. The chapter also looks at the impact of law and economics on advanced private law areas, such as business associations, trusts and estates, and intellectual property.
New Institutional Economics
Authors: Richman Barak
Published: November 2020

This chapter assesses New Institutional Economics (NIE). It begins by describing the author’s own understanding of the New Private Law (NPL). The chapter then provides a brief introduction to NIE and its intersection with the study of legal doctrines and institutions. NIE’s roots extend—at least—to Ronald Coase’s famous 1937 article, “The Nature of the Firm,” and more likely to the writings of nineteenth- and early twentieth-century political economists. These intellectual traditions have shaped what is now known as NIE into two distinct branches. The first branch examines institutions as “humanly designed constraints that structure political, social, and economic interactions.” The second branch of NIE focuses on more micro-level behavior. Called “the governance branch” and operationalized by transaction cost economics, the foundational idea is to describe firms not in neoclassical terms as production functions, but in organizational terms as governance structures. The chapter explains how both NPL and NIE exhibit the hallmarks of interdisciplinary, scholarly pluralism, and an inquisitive focus on real-world, tractable problems. It concludes with some thoughts about the future of NPL and, in particular, the lessons it can take from NIE’s successes.
Psychology and the New Private Law
Authors: Wilkinson-Ryan Tess
Published: November 2020

This chapter presents a framework for understanding the most promising contributions of psychological methods and insights for private law. It focuses on two related domains of psychological research: cognitive and social psychology. Cognitive psychology is the study of mental processes, which one might shorthand as “thinking.” Social psychology asks about the role of other people—actual, implied, or imagined—on mental states and human behavior. The chapter is oriented around five core psychological insights: calculation, motivation, emotion, social influence, and moral values. Legal scholarship by turns tries to explain legal decision-making, tries to calibrate incentives, and tries to justify its values and its means. Psychology speaks to these descriptive, prescriptive, and normative models of decision-making. The chapter then argues that psychological analysis of legal decision-making challenges the work that the idea of choice and preference is doing in private law, especially in the wake of the law and economics movement.
How to Manage Heritage Brands
Authors: Dion Delphine
Published: November 2020

Many luxury brands place their heritage at the core of their brand value proposition and identity. This chapter analyses heritage brand management by focussing on a specific business issue—the revival of sleeping beauties. Sleeping beauties are brands that are no longer active on the market but still have potential brand equity that can be conjured up in the minds of consumers by rearticulating their heritage. The chapter presents three branding strategies used to revive a sleeping beauty: brand revitalisation, brand copying, and retrobranding. These strategies differ in the way they associate the brand with its past and heritage. Finally, the chapter investigates three issues that play a key role in the success of a brand revival: brand awareness on the market before revival, heritage reinterpretation, and heritage authentication.
The Library at Monte Cassino
Authors: Newton Francis
Published: November 2020

This chapter surveys the history of the library at Monte Cassino from the earliest known manuscripts beginning with the time of St. Benedict in the sixth century, continuing through the better Carolingian period and the monastery’s Golden Age in the eleventh century under Abbots Desiderius and Oderisius, and ending in the thirteenth century. Illustrious teachers and writers, including Paul the Deacon, Alberic, Alfanus, Constantine the African, Amatus, and Peter the Deacon, are discussed, as is the abbey’s production of important classical and patristic texts.
Book Trade
Authors: Cavallo Guglielmo
Published: November 2020

The evidence for Latin book production in the first centuries of the empire exhibits a diversity of technical levels especially in the quality of writing. The surviving fragments of early Latin books are discussed in relation to the historiographcial sources that mention the book trade, the audience for books, and the price of books, the location of book shops in Rome, and the trade outside of Rome both for new books and for used ones. The author discusses also the changes in the book trade in Late Antiquity, including the influence of Christianity, a greater domestic production of books, and the role of monks as scribes for hire.
Book Production in Paris
Authors: Rouse Richard H. , Rouse Mary A.
Published: November 2020

This chapter surveys the history of book production in Paris, the most important source for manuscript books in northern Europe from the mid-twelfth century until the end of the fifteenth. The authors discuss book production in the eighth and ninth centuries centered in the Benedictine monasteries of Saint-Denis and Saint-Germain, in the twelfth and thirteenth centuries at the Augustinian abbeys of Saint-Victor and Sainte-Geneviève, the commercial production for the University in the same period, as well as the production of glossed Bibles, and single-volume Paris Bibles. Also covered are the booksellers (libraires) and the pecia system, as well as the increase in the copying of vernacular books in the fourteenth century.
Luxeuil
Authors: Cherubini Paolo
Published: November 2020

This chapter surveys the script known as Luxeuil minuscule, associated with the Burgundian monastery of Luxeuil which was the chief center of its production. The author outlines the history of the script, the morphology of its unique letterforms, and some of the most famous examples of the script, including the Luxeuil Lectionary. The Luxeuil script was the first Frankish book script evolved from the cursive documentary hands of the Merovingian chanceries.
The Scriptorium and Library of Salisbury Cathedral
Authors: Webber Teresa
Published: November 2020

This chapter surveys the history of the scriptorium and library of Salisbury Cathedral, from in-house production of the original collection in the eleventh and twelfth centuries, to the enlargement of the collection in later periods through gift and bequest. More than 200 early books from Salisbury are extant today, many of them bearing inscriptions documenting their varied histories and illuminating the role of the cathedral canons as benefactors of the collection, as well as its principal users.
Manuscript Production in Florence
Authors: Binnebeke Xavier van
Published: November 2020

Florence was the center of humanist book production, not only in Italy, but more generally in the West. This essay discusses the new style of classical and humanist books produced in fifteenth-century Florence, focusing on script, decoration, major libraries (the Angeli, the badia, San Marco), collectors (the Medici, Parentucelli, Jean Jouffroy, King Alfonso of Naples, Federico da Montefeltro), and the booksellers (Guarducci, Vespasiano).