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Monday, October 31, 2005

Critique of Private Law

I don't think it's worth a rebuttal (or is it a rejoinder?), but anyway here's a funny critique of my article on private law. (Be sure to note the connection between my stance and the hunger blockade of Iraq.)

13 comments:

  1. In law, rejoinder refers to the fourth round of pleadings, viz:

    1. Claim.
    2. Defence
    3. Reply
    4. Rejoinder
    5. Surrejoinder

    So since your response would be the third round in the debate, it would be a Reply rather than a Rejoinder.

    Not a lot of people know that ;-)

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  2. Anonymous4:33 PM

    Cronkite's argument must be a spoof -- in order to justify the State, he presents line after line of bad things done by State's!

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  3. Mr Murphy, you (and many others) have a naive view of the law. Dispute resolution is not a first principle and ignores whole chunks of jurisdiction: equity, bankruptcy, family law, probate, product liability, drunk driving.

    Wolf DeVoon
    http://wolfdevoon.tripod.com

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  4. Anonymous12:41 AM

    Wolf DeVoon writes: "Dispute resolution is not a first principle and ignores whole chunks of jurisdiction: equity, bankruptcy, family law, probate, product liability, drunk driving."

    Bankruptcy: dispute resolution.
    Family law: dispute resolution.
    Product liability: dispute resolution.

    The rest arguably are as well.

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  5. I'm not sure what Mr. Devoon is getting at. Litigation is one form of dispute litigation (others are mediation, arbitration etc).

    It may be that Mr. Devoon means to imply that an anarchic system would be unable to handle certain kinds of disputes. But I cannot see why that should be so. To the contrary, the lower cost and greater innovation resulting from competition between courts, would surely tend to facilitate dispute resolution across the board?

    Julius

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  6. "dispute litigation" should of course read "dispute resolution"

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  7. Bankruptcy is indisputable. The idea is to discharge and hold harmless, after equitable distribution of debtor assets to creditors.

    Family law contemplates child welfare, which flows from the principle of human rights, not dispute resolution.

    Product liability is certainly not dispute resolution, because ancap theorists routinely rely on disclaimer and caveat emptor to wave away liability. There is no arbitration among a class of consumers and producers who never pledged an obligation.

    Arbitration presupposes a contract that can be interpreted and construed. Mediation is ineffectual without voluntary submission. Neither of them can compel testimony, summon a jury, punish crime, restrain or compel equitable action.

    The first principle of law is due process, not private agreements.

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  8. I don't think we are disagreeing much. Plainly not all dispute resolution procedures can be grounded in private agreements. As you rightly say, arbitration and mediation presuppose prior consent. And even in the case of arbitration, consent to the process does not always entail the volunary honouring of an arbitration award!

    It follows that any legal system, whether ancap or otherwise, must make provision for compulsory processes in those cases where parties are unwilling or even absent. The most obvious example is of course the enforcement of judgments (though there may be other elements).

    However, this does not mean that private competing courts would be unworkable. To the contrary, competition between courts is surely the best way to arrive at procedures that are both generally acceptable and economical.

    I don't think it is possible to define in advance what those procedures might be - for example I would hesitate to say that compulsory testimony or the summoning as juries would be inevitable elements of libertarian courts - although no doubt many elements of our existing procedures - particularly those derived from the common law - would be used as a starting point.

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  9. Anonymous12:10 AM

    The Ring ,where you disappeared? Call to me fast! gorlum
    Regards

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