Larissa Katz has undergraduate degrees in philosophy and law from the University of Alberta and graduate degrees in law from the Yale Law School. After law school, Professor Katz clerked for the late Justice Charles D. Gonthier at the Supreme Court of Canada and worked at Sullivan & Cromwell LLP (NY) in the litigation department.
Professor Katz teaches and writes about property law and theory. Her work is published in the Yale Law Journal, University of Pennsylvania Law Review, Legal Theory, Jurisprudence, University of Toronto Law Journal, McGill Law Journal and the Canadian Journal of Law and Jurisprudence.
Professor Katz has been a visiting fellow at the John Fleming Centre for the Advancement of Legal Research at the Australian National University; a Visiting Professor at Sciences Po (Paris); and an HLA Hart Visiting Fellow at the Oxford Center for Ethics & Philosophy of Law, Oxford University.
This paper argues that there is a common threshold question for private law theory, in particular... more This paper argues that there is a common threshold question for private law theory, in particular in the way it relates to property law: how do we conceive of persons for the purposes of law and how could people so-conceived possibly relate? Legal forms, on this account, constitute the available ways of thinking legally about relations between persons. Legal forms, as normative ideals, do not of course determine what positive law there is nor do legal forms even set out the particularities of the law we ought to have: for that, we have politics. Because legal forms concern relations between persons as we take them to be, there is a room for moral disagreement about what legal forms there are. Legal theory, and property theory in particular, appears divided between those who think there is a distinctively legal way of reasoning about human relations and those who think there is not. This is the divide between formalists and moralists. It is this understanding of the basic disagreement between formalists and moralists that I want to challenge. I will argue in this paper that there is, after all, a foothold for formalism at the very heart of some " all things considered " moral theories of law. Nowhere do we see more clearly the formalist foothold than in property theory today. By no means, however, does the recent conceptual turn in property theory itself suggest that " we are all formalists now. " Rather, I will show that the Hohfeldian underpinnings of some moralist approaches to property law are themselves formal in this normative sense. That is because Hohfeld, I will argue, took his jural relations to reflect the only ways in which persons could relate in law, given his peculiar conception of persons for the purposes of law, property law in particular. The basic disagreement between moralist and formalist accounts of property law is better understood as a disagreement about the proper scope of legal reasoning, rather than a disagreement about the availability at all of a distinctively legal way of reasoning about human relations (i.e., a disagreement about the existence of legal forms).
There are a number of doctrines and principles that were traditionally clustered together and tho... more There are a number of doctrines and principles that were traditionally clustered together and thought of as “equity.” Now we have doubts about that clustering that reflect a more general worry about equity’s moral significance: does equity as an institution have a normative and conceptual core? One response is to understand equity as the residual power to do justice in the particular case. This view of equity fails as an institutional account of equity. It does not explain equitable doctrine nor does it account for equity’s place within the constitutional order more generally. This paper offers a new account of what is distinctive and morally significant about equity in relation to a rights-based system of law. The central insight of my account is that equity sets out and regulates the pathways to legal rights. My account tracks equity’s emergence from within the prerogative powers of the executive and identifies and explains a morally required place for equity within our larger institutional arrangements.
In this article, I propose a model for understanding the concept of ownership that I call the &#x... more In this article, I propose a model for understanding the concept of ownership that I call the 'exclusivity model.'Like many of the contemporary critics of the 'bundle of rights' approach to ownership, I insist that ownership is a legal concept with a well-defined structure. I differ ...
On what grounds can we justify the transformation of squatters into owners? To understand the mor... more On what grounds can we justify the transformation of squatters into owners? To understand the moral significance of adverse possession, the author proposes an analogy. Much of the moral analysis of adverse possession has proceeded on the basis that adverse possessors are ...
Page 1. 1 Ownership and Social Solidarity: A Kantian Alternative Larissa Katz* ... 711 (1996) and... more Page 1. 1 Ownership and Social Solidarity: A Kantian Alternative Larissa Katz* ... 711 (1996) and discussions in Merrill & Smith, Law and Economics, supra note 1, at 36970 (2001) and LarissaKatz, Exclusion and Exclusivity in Property Law, 58 U. TORONTO LJ 275, 276 (2008). ...
Contemporary private law theory proceeds on the basis that we can make sense of the nature and st... more Contemporary private law theory proceeds on the basis that we can make sense of the nature and structure of private law wholly in terms of substantive rights and duties. Private law theorists largely account for private law and private law ordering in terms of the right-duty relations they find in property, contract and tort law. This paper broadens the horizons of private law theory to take account of norms of private law procedure. This paper identifies estoppel as a powerful private law idea concerned with the integrity of our declarations about how things stand between us, as a matter of private right. It argues that a principle of estoppel is a central component of a decentralized form of public administration, in which private rights-holders— alongside of judges and other public officials— participate in forming and stabilizing the private law order.
This paper argues that there is a common threshold question for private law theory, in particular... more This paper argues that there is a common threshold question for private law theory, in particular in the way it relates to property law: how do we conceive of persons for the purposes of law and how could people so-conceived possibly relate? Legal forms, on this account, constitute the available ways of thinking legally about relations between persons. Legal forms, as normative ideals, do not of course determine what positive law there is nor do legal forms even set out the particularities of the law we ought to have: for that, we have politics. Because legal forms concern relations between persons as we take them to be, there is a room for moral disagreement about what legal forms there are. Legal theory, and property theory in particular, appears divided between those who think there is a distinctively legal way of reasoning about human relations and those who think there is not. This is the divide between formalists and moralists. It is this understanding of the basic disagreement between formalists and moralists that I want to challenge. I will argue in this paper that there is, after all, a foothold for formalism at the very heart of some " all things considered " moral theories of law. Nowhere do we see more clearly the formalist foothold than in property theory today. By no means, however, does the recent conceptual turn in property theory itself suggest that " we are all formalists now. " Rather, I will show that the Hohfeldian underpinnings of some moralist approaches to property law are themselves formal in this normative sense. That is because Hohfeld, I will argue, took his jural relations to reflect the only ways in which persons could relate in law, given his peculiar conception of persons for the purposes of law, property law in particular. The basic disagreement between moralist and formalist accounts of property law is better understood as a disagreement about the proper scope of legal reasoning, rather than a disagreement about the availability at all of a distinctively legal way of reasoning about human relations (i.e., a disagreement about the existence of legal forms).
There are a number of doctrines and principles that were traditionally clustered together and tho... more There are a number of doctrines and principles that were traditionally clustered together and thought of as “equity.” Now we have doubts about that clustering that reflect a more general worry about equity’s moral significance: does equity as an institution have a normative and conceptual core? One response is to understand equity as the residual power to do justice in the particular case. This view of equity fails as an institutional account of equity. It does not explain equitable doctrine nor does it account for equity’s place within the constitutional order more generally. This paper offers a new account of what is distinctive and morally significant about equity in relation to a rights-based system of law. The central insight of my account is that equity sets out and regulates the pathways to legal rights. My account tracks equity’s emergence from within the prerogative powers of the executive and identifies and explains a morally required place for equity within our larger institutional arrangements.
In this article, I propose a model for understanding the concept of ownership that I call the &#x... more In this article, I propose a model for understanding the concept of ownership that I call the 'exclusivity model.'Like many of the contemporary critics of the 'bundle of rights' approach to ownership, I insist that ownership is a legal concept with a well-defined structure. I differ ...
On what grounds can we justify the transformation of squatters into owners? To understand the mor... more On what grounds can we justify the transformation of squatters into owners? To understand the moral significance of adverse possession, the author proposes an analogy. Much of the moral analysis of adverse possession has proceeded on the basis that adverse possessors are ...
Page 1. 1 Ownership and Social Solidarity: A Kantian Alternative Larissa Katz* ... 711 (1996) and... more Page 1. 1 Ownership and Social Solidarity: A Kantian Alternative Larissa Katz* ... 711 (1996) and discussions in Merrill & Smith, Law and Economics, supra note 1, at 36970 (2001) and LarissaKatz, Exclusion and Exclusivity in Property Law, 58 U. TORONTO LJ 275, 276 (2008). ...
Contemporary private law theory proceeds on the basis that we can make sense of the nature and st... more Contemporary private law theory proceeds on the basis that we can make sense of the nature and structure of private law wholly in terms of substantive rights and duties. Private law theorists largely account for private law and private law ordering in terms of the right-duty relations they find in property, contract and tort law. This paper broadens the horizons of private law theory to take account of norms of private law procedure. This paper identifies estoppel as a powerful private law idea concerned with the integrity of our declarations about how things stand between us, as a matter of private right. It argues that a principle of estoppel is a central component of a decentralized form of public administration, in which private rights-holders— alongside of judges and other public officials— participate in forming and stabilizing the private law order.
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Papers by Larissa Katz
This paper offers a new account of what is distinctive and morally significant about equity in relation to a rights-based system of law. The central insight of my account is that equity sets out and regulates the pathways to legal rights. My account tracks equity’s emergence from within the prerogative powers of the executive and identifies and explains a morally required place for equity within our larger institutional arrangements.
Drafts by Larissa Katz
This paper offers a new account of what is distinctive and morally significant about equity in relation to a rights-based system of law. The central insight of my account is that equity sets out and regulates the pathways to legal rights. My account tracks equity’s emergence from within the prerogative powers of the executive and identifies and explains a morally required place for equity within our larger institutional arrangements.