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The Dignity of Commerce: Markets and the Moral Foundations of Contract Law

Nathan B. Oman

Why should the law enforce contracts? This book argues that contract law exists primarily to support markets but that markets should be understood as normatively desireable for reasons beyond mere ... More

Why should the law enforce contracts? This book argues that contract law exists primarily to support markets but that markets should be understood as normatively desireable for reasons beyond mere economic efficiency. This book thus updates the doux commerce argument of 18th-century theorists such as Montesquieu and Adam Smith, who saw markets as an important and largely positive moral and political influence. Commerce tends to inculcate a set of moral habits -- virtues -- that support liberal political regimes by forcing market participants to view the world from another's point of view. Markets provide a framework for social cooperation that does not require deep moral or political agreement or tribal solidarity. Finally, well-functioning markets produce wealth and prosperity, which can have an ameliorative effect a host of social evils. Contract law tends to strengthen and extend markets and is valuable for that reasons. Placing markets at the center of the normative defense of contract law has concrete implications for how we should think about doctrinal issues such as contract formation, remedies, and the treatment of boilerplate agreements. In all of these contexts, it shifts attention away from the highly individualistic focus of much of contemporary contract law theory and toward system concerns with how contract law structures markets. Finally, because markets at times become pernicious, this book's argument also provides insight into the limits of contract law.Less

How to Do Things with Legal Doctrine

Pierre Schlag and Amy J. Griffin

“How to do Things with Legal Doctrine,” describes and explains those fundamental rhetorical moves that cut across the law school curriculum. We discuss rules vs. standards, textualism vs. ... More

“How to do Things with Legal Doctrine,” describes and explains those fundamental rhetorical moves that cut across the law school curriculum. We discuss rules vs. standards, textualism vs. purposivism, broad and narrow time frames, the theater metaphor, continuous and segmented transactions, the myriad arguments that attend the creation and destruction of legal distinctions, the classic techniques for reconciling doctrinal conflicts, and much (much) more. We look at legal doctrine by addressing the gaps, the conflicts, and other places where law seems to run out, yet legal argument must nonetheless go on. This is a book of theory, but what it theorizes are the practical arguments that lawyers make day in and day out. Our goal is not just to render the intellectual practical, but to reveal the intellectual aspects of the practical. Not just a discussion, this book also serves as a prompt, a compendium and a central resource for brainstorming about how to write a legal brief, a judicial opinion, a law review article.Less

The Moral Conflict of Law and Neuroscience

Peter A. Alces

This book is, essentially, a thought experiment: what should the law be in order to govern the affairs of human agents who do not have free will? Proceeding from the premise that human agents are ... More

This book is, essentially, a thought experiment: what should the law be in order to govern the affairs of human agents who do not have free will? Proceeding from the premise that human agents are determined creatures who lack free will, and therefore lack moral responsibility, this book considers where and how the law fails to appreciate that humans cannot be morally blameworthy and joins the normative conversation, in order to open new avenues of thought. Aspects of criminal law depict the neuroscientific naïveté of the doctrine, such as the inconsistent treatment of those with equally disadvantageous cognitive deficits, congenital or acquired. Further, normative criminal law theory fails to understand authentic human agency from the perspective vindicated by neuroscience, a failure exemplified by retributive theories of punishment, and instead relies on folk psychological concepts. Like criminal law, many concepts of tort law doctrine operate based on an inauthentic view of human agency—including the standard of care, proximate causation, and the compensability as well as monetization of injuries. This inauthentic conception is pervasive in non-instrumental normative theories of tort, which are demonstrated to be incoherent. Contract law doctrine too relies on inaccurate folk psychological concepts, such as consent, that ignore the situationist nature of human agency. And non-instrumental theories of contract rely on dubious assumptions of promise and agreement that conflict with a materialist stance. Finally, after assailing the straw men founding compatibilist views, this book anticipates an “Age of Realization” ushered in by a broader, deeper neuroscientific understanding.Less

Ordinary Meaning: A Theory of the Most Fundamental Principle of Legal Interpretation

Brian G. Slocum

There is a long-standing judicial commitment to interpreting language in legal texts according to its ‘ordinary meaning’. That is, courts have uniformly agreed that words in legal texts should be ... More

There is a long-standing judicial commitment to interpreting language in legal texts according to its ‘ordinary meaning’. That is, courts have uniformly agreed that words in legal texts should be interpreted in light of accepted standards of communication. The constituent question of what makes some meaning the ordinary one and the evidential question of how the determinants of ordinary meaning are identified and conceptualized are thus of crucial importance to the interpretation of legal texts. This book provides a theory that answers the constituent question and a general framework for how the determinants of ordinary meaning (i.e., the evidential question) should be identified and developed. One main flaw in the judiciary’s approach is a failure to properly consider context. Certainly, there is a tension between the inherent requirement of ordinary meaning that it be generalizable across contexts and the reality that meaning is inherently contextual. A significant aspect of framing the ordinary meaning inquiry, and considering arguments about it, therefore involves considering the contribution that context makes to meaning. Even when framing ordinary meaning as being primarily based on semantic meaning and limited consideration of context, the determination of ordinary meaning invariably has an ineliminable element of interpreter discretion. This discretion is typically underappreciated by the adherents of the methodology of interpretation known as textualism. Nevertheless, focusing on the systematicities of language can often narrow the range of interpretive discretion and improve the judiciary’s determination of ordinary meaning.Less

Slices and Lumps: Division and Aggregation in Law and Life

Lee Anne Fennell

This book focuses on a profoundly important but often overlooked concept that shapes how we live, work, play, and govern ourselves: configuration. From “lumpy goods” like bridges and highways that ... More

This book focuses on a profoundly important but often overlooked concept that shapes how we live, work, play, and govern ourselves: configuration. From “lumpy goods” like bridges and highways that are valuable only when complete, to resources and assets that become more useful when artfully subdivided, human well-being depends on assembling useful lumps and carving out useful slices. From hot-button issues like eminent domain and the sharing economy to personal struggles over the management of time, money, and diet, issues of aggregation and division abound. This book highlights the ubiquity of configuration problems in law, policy, and everyday life, and examines strategies for addressing them. Configuration’s power has never been more important to understand and harness. As increasing urbanization and environmental threats raise the stakes for assembling resources and cooperation, emerging forms of unbundling, from jobs to cars to homes to entertainment, have refined the slices in which we produce and consume. The future of the city, the workplace, the marketplace, and the environment all turn on questions of configuration, as do the prospects for more effective legal doctrines, for better management of finances and health, and much more. This book examines how governments, firms, households, and individuals slice and lump, and how they might do these things better. It reveals the power and potential of configuration—as a unifying concept and field of study, as a focus of public policy and private entrepreneurship, and as a crucial form of life-hacking.Less

The Theory of Rules

Karl N. Llewellyn

Fredrick Schauer (ed.)

Karl N. Llewellyn was one of the founders and major figures of legal realism, and his many keen insights have a central place in American law and legal understanding. Key to Llewellyn's thinking was ... More

Karl N. Llewellyn was one of the founders and major figures of legal realism, and his many keen insights have a central place in American law and legal understanding. Key to Llewellyn's thinking was his conception of rules, put forward in his numerous writings and most famously in his often mischaracterized declaration that they are “pretty playthings.” This book presents his profound and insightful thinking about the life of rules. This book frames the development of Llewellyn's thinking and describes the difference between what rules literally prescribe and what is actually done, with the gap explained by a complex array of practices, conventions, professional skills, and idiosyncrasies, most of which are devoted to achieving a law's larger purpose rather than merely following the letter of a particular rule. This rediscovered work contains material not found elsewhere in Llewellyn's writings and is a valuable contribution to the existing literature on legal realism.Less