• Selected
• Entire List

Abstract:
The works of contemporary Natural Law theorists, including Lon Fuller, Michael Moore, Ronald Dworkin, and John Finnis, are discussed critically and their views are placed within the context of a tradition thousands of years old. In the summary of the broader context, the paper considers the connections and relationships between natural law theory and nature, God, natural rights, law, and legal positivism. The article also includes an extensive (but not exhaustive) bibliography.

Abstract:
This working paper is an early draft of two chapters (and the Preface and Bibliography) from a larger work on Contract Law (for the series, Cambridge Introductions to Philosophy and Law). The working paper covers the theory-focused part of the project. The paper analyzes what it means to have a theory of Contract, and what the criteria should be for evaluating such theories. The paper concludes that general or universal theories of Contract Law - at least those that have been presented to date (including economic theories of contract law, and deontological theories focusing on promising or autonomy) - cannot be justified, and we must seek instead to construct a theory that focuses on a particular legal system (or small group of legal systems), and that emphasizes the variety of principles and approaches within Contract Law, rather than seeking to find or impose a unity that does not exist.

In the course of the argument, the paper also touches on the role of history in explaining legal doctrine, voluntariness in contract formation, the moral obligation to keep contracts, and the relationship between rights and remedies.

Contract Law, Philosophical Foundations of the Common Law, Jurisprudence, Law and Economics

Abstract:
This article tries to present the jurisprudential school of thought, legal positivism, within a larger context than is usual in contemporary English-language discussions of that approach: (1) showing the intellectual and political contexts in which the movement began; (2) emphasizing the variety of theories that fit under that label (e.g., how the Kelsenian tradition varies significantly from the Hartian tradition); and (3) discussing how the future development of legal positivism will depend on its discussion of wider theoretical issues (e.g., the proper approach to social theory, and the use of conceptual analysis in philosophy). The article also summarizes the main criticisms of legal positivism, and gives an overview of the internal debate of inclusive legal positivism versus exclusive legal positivism.

Abstract:
Gustav Radbruch is well known for a formula that addresses the conflict of positive law and justice, a formula discussed in the context of the consideration of Nazi laws by the courts in the post-War German Federal Republic, and East German laws in the post-unification German courts. More recently, Robert Alexy has defended a version of Radbruch's formula, offering arguments for it that are different from and more sophisticated than those that were adduced by Radbruch himself. Alexy also placed Radbruch's formula within a larger context of conceptual analysis and theories about the nature of law. Both Radbruch and Alexy claim that their positions are incompatible with legal positivism, and therefore count as a rejection (and perhaps, refutation) of it.

This paper, presented at a Conference on the work of Gustav Radbruch, looks at Radbruch's formula and Alexy's version of it. It focuses not so much on the merit of the Radbruch-Alexy formula, as on its proper characterization, and its appropriate placement within the larger context of legal philosophy. The particular focus is the methodological question of what Radbruch and Alexy's formulations - and their strengths and weaknesses - can show us about the nature of theorizing about law.

Robert Alexy, Gustav Radbruch, legal positivism, natural law theory, nature of law, conceptual theories, unjust laws

Abstract:
The idea of autonomy of law applies in distinct but related ways to legal reasoning, judicial reasoning, legal scholarship, and legal education. Additionally, claims about the autonomy of law can be understood as descriptive, analytical, or prescriptive. In this article, the different permutations of autonomy of law claims are considered in the context of various approaches to law, including American legal realism, the legal process school, law and economics, and critical legal studies.

American legal scholarship has gone through a period of overestimating the autonomy of legal reasoning, at the time of the legal formalists, to today, when the autonomy of legal reasoning is generally underestimated. Law's distinctive approach to reasoning and decision-making derives from the type of practice law is: a behavior-guiding practice, where the guidance is done primarily through general rules, and the rules are interpreted and applied by a hierarchical court system that gives precedential weight to earlier decisions. Within this sort of structure, legal discourse is distinctive, but can also be seen as merely a particular application of moral and political reasoning, rather than entirely abstracted from such reasoning.

autonomy of law, formalism, legal realism, CLS

Abstract:
The paper explores the justification for conceptual analysis as the methodology for theories about the nature of law. Using the example of Joseph Raz's theory, and Raz's own recent work on jurisprudential methodology, the paper explores the challenges to this standard approach: whether conceptual analysis is the appropriate approach, whether it needs to be supplemented by moral evaluation, and whether conceptual analysis can yield theories of substantial interest.

conceptual analysis, jurisprudence, legal philosophy, Joseph Raz, naturalism

Abstract:
This article, written for the forthcoming Oxford Handbook of American Philosophy, offers an overview of the most important American contributions to legal philosophy - American legal realism, law and economics, various critical schools of jurisprudence, Lon Fuller, and Ronald Dworkin - while speculating on what might be distinctive of American legal philosophy. One obvious recurring theme is a focus on practical application in general, and adjudication (especially constitutional adjudication) in particular.

jurisprudence, legal realism, law and economics, Ronald Dworkin, Lon Fuller, feminist legal theory, critical race theory, critical legal studies, legal process

Abstract:
Electronic Contracting - understood broadly to include both the Internet downloading of free or purchased software and the use of rolling contracts (shrink-wrap or terms in the box) in the sale of computers or the lease of software - has raised problems, based in part on the novelty of the transactional forms, and in part on the now-standard issue of unread terms in standardized contracts. This article, part of a conference relating to the legal regulation of new property and new technologies, offers an overview of the distinctly different approaches to Electronic Contracting of the U.S. and the European Union. The American legal system has tried, at times awkwardly, to fit the new transactions into existing doctrinal categories, leaving protection of consumers primarily to market mechanisms. The E.U. has responded through significant governmental intervention, at least for consumer contracts: expressing requiring some terms in consumer transactions, while prohibiting many others.

contract law, european union law, rolling contracts, unfair contract terms directive, distance selling directive, shrink wrap, browse wrap, UCITA

Abstract:
This short article was written for a collection on American legal philosophy today. It gives a brief overview of analytical legal philosophy, and speculates on why this theoretical approach has been consistently misunderstood in the United States, from the time of the legal realists until today.

analytical legal philosophy, legal theory, legal positivism

Abstract:
This article (based on a paper presented to the 2002 Inland Northwest Philosophy Conference) raises questions about the way some legal theorists have used the later work of Ludwig Wittgenstein - in particular his rule-following considerations. Wittgenstein's ideas have been used to ground both skeptical approaches and highly conservative approaches to legal reasoning and legal interpretation. In nearly every case, such arguments are based either on mis-readings of Wittgenstein's work, or ungrounded extensions of his ideas. The article concludes that while there are valuable uses for Wittgenstein's work within legal theory, theorists must argue with care when they attempt such cross-disciplinary borrowings.

Abstract:
Consent, in terms of voluntary choice, is - or, at least, appears to be or purports to be - at the essence of contract law. Contract law, both in principle and in practice, is about allowing parties to enter arrangements on terms they choose - each party imposing obligations on itself in return for obligations another party has placed upon itself. This freedom of contract- an ideal by which there are obligations to the extent, but only to the extent, freely chosen by the parties - is contrasted to the duties of criminal law and tort law, which bind all parties regardless of consent. At the same time, consent, in the robust sense expressed by the ideal of freedom of contract, is arguably absent in the vast majority of the contracts we enter these days, but its absence does little to affect the enforceability of those agreements. Consent to contractual terms often looks like consent to government: present, if at all, only under a fictional (as if) or attenuated rubric.

This article explores a variety of topics relating to consent, and the role it plays in contract law doctrine and theory. The article begins by a brief examination of the nature of consent, then turns to contract doctrines that turn on the alleged absence of consent (e.g., duress and undue influence); contract rules and principles (e.g., implied terms) that turn on hypothetical consent; the challenges to consent that arise from electronic contracting and bounded rationality, and theories of contract law that emphasize consent.

contract, consent

Abstract:
There is an ongoing debate in the philosophical and jurisprudential literature regarding the nature and possibility of Contract theory. On one hand are those who argue (or assume) that there is, or should be, a single, general, universal theory of Contract Law, one applicable to all jurisdictions and all times. On the other hand are those who assert that Contract theory should be localized to particular times and places, perhaps even with different theories for different types of agreements. This article considers one facet of this debate: evaluating the relevance of the fact that the remedies available for breach of contract can vary significantly from one jurisdiction to another. This wide variation in remedies for breach of a (contractual) promise is one central difference between promises in morality and enforceable agreements in law. The article asserts that variation of remedies strongly supports the conclusion that there is (and can be) no general, universal theory of Contract Law.

Abstract:
Scandinavian legal realism was a movement of the early and middle decades of the 20th century, which paralleled the American legal realist movement, while presenting a more skeptical challenge to legal reasoning and discourse. The present paper was written for a forthcoming Oxford University Press collection on the Scandinavian realists. The approach to jurisprudence of Scandinavian realists Alf Ross and Karl Olivecrona was simultaneously simple and radical: they wanted to rid our thinking about law of all the mystifying references to abstract concepts and metaphysical entities. This paper offers a critical overview of Ross's and Olivecrona's views on legal rights, while also summarizing the critiques of those views (e.g., by H.L.A. Hart and Joseph Raz).

legal rights, Scandinavian legal realism, Alf Ross, Karl Olivecrona

Abstract:
The nature and location of the disagreement(s) between legal positivism and natural law theory has often been unclear, in large part because of the way each approach has been misunderstood by advocates for the other side. Many commentators assume that the two approaches disagree about whether immoral rules can have the status of law, but there is little evidence to support this view. Natural law theorists from Aquinas to Finnis have allowed that immoral rules are law (can have legal status), only that they are not law in its fullest sense (because such laws do not create moral obligations to obey them).

The article concludes that the debate between natural law and legal positivism is joined elsewhere: regarding the meta-theoretical question of whether it is possible and valuable to have a morally neutral theory of law. Legal positivists advocate morally neutral theories, while natural law theorists like Finnis expressly or implicitly argue for a pervasively moral-evaluative theory of law, arguing that one can only understand a reason-giving practice like law against the background of what it would mean to give a good (legitimate, moral-obligation-creating) reason for action. A variation of the same argument is that one can only understand law within a (teleological) theory that gives a place for the moral ideal (justice) to which law strives.

Abstract:
Economic analysis was relatively late in coming to Family Law, and, initially, Family Law scholars resisted that approach. More recently, scholars in this field have found different ways to adapt the various forms of rational choice theory, while still noting some of the topics and areas where economic analysis has only limited value. This article gives an overview of the current Family Law/Law & Economics hybrids, and a consideration of the value and limits of economic analysis in Family Law scholarship. Topics discussed include the application of Coasean analysis to divorce law, the usefulness of game theory to analysis of domestic relations, and the possibilities and limits when using economic analysis to talk about love.

Family law, law and economics, social norms

Abstract:
This article is based on a Lecture given as part of the Franklin J. Matchette Foundation Lecture Series on Truth at the Catholic University of America, School of Philosophy, in 2002. It explores what theorists in the natural law tradition and modern legal theorists have argued about what makes propositions of morality and law true, focusing on the rubric of "reason" as opposed to "will."

It seems probable, and perhaps inevitable, that theorists about the nature of truth in morality must choose between reason and will - that morality, at its core, is either one or the other. What makes law distinctive is that it is, as a practical matter if not by conceptual necessity, a mixture of both. And it is this intertwining of reason and will, of normative system and practical reasoning, which makes assertions about the nature of legal truth, and theories about the nature of law, so difficult.

The arguments about truth in law are as much disagreements about what it means to say that a legal proposition is truth as they are about what makes legal propositions true. Are declarations of truth in law statements about legal norms and legal sources, or are they statements about the results of particular disputes or particularized inquiries?

There are obvious complications in speaking of truth in a context like law, where there is simultaneously an effort to create a coherent normative system and a decision-making procedure that can modify that system in the course of resolving disputes.

Abstract:
This talk was the Reappointment Lecture for the Frederick W. Thomas Chair in the Interdisciplinary Study of Law and Language at the University of Minnesota. The topic is the way that the words we use in legal doctrinal reasoning can - intentionally and unintentionally - mislead us regarding the proper outcomes of cases and the best development of the law. Connecting to the ideas of the American legal realists Oliver Wendell Holmes, Jr., and Felix Cohen, the talk uses examples from Contract Law (assent to terms in electronic contracting cases, waiver of the failure of conditions), Medical Decision-Making (deciding on behalf of incompetent patients), and Family Law (same-sex marriage, child custody, and alimony) to make general points about how we choose words to make our decisions more persuasive or more comfortable, when we should instead be using more transparent (more honest) terminology, in order better to confront the real underlying moral and policy questions.

contract law, family law, assent, substituted judgment, same-sex marriage, alimony, American legal realism, Oliver Wendell Holmes Jr., Felix Cohen

Abstract:
Modern legal positivism developed in response to a belief in the possibility and the value of having a quasi-scientific descriptive theory of law. In recent decades, legal positivism has moved in a different direction, due to the influence of H.L.A. Hart's work, which introduced hermeneutic elements into legal positivism. This article examines the hermeneutic turn in legal theory, and its implication for legal positivism in particular, and analytical jurisprudence in general. Some critics have argued that the hermeneutic element introduced by Hart undermines the possibility of having a purely descriptive theory of law, or even that it undermines the ability of theorists to criticize the legal systems they are studying. These possibilities are considered, in the course of evaluating the views of Joseph Raz, John Finnis, Stephen Perry, H. Hamner Hill, and others.

Abstract:
This brief article, for the forthcoming single-volume encyclopedia, "The Chicago Companion to the Child," offers an overview of the history and current use of the family law standard, "Best Interests of the Child." The standard arose out of changing ideas about child custody, and now is a pervasive touchstone in many countries for family law decisions of all kinds. The article also briefly discusses concerns that the standard encourages litigation, gives too much discretion to judges, and does not grant sufficient weight to the rights of parents.

family law, custody, best interests

Abstract:
In commercial transactions, parties are generally empowered to choose (by a term in their contracts) which state law applies to their agreements. Most commentators believe that such choice of law power increases efficiency, by allowing parties to pick the regulatory regime that best fits the needs of their particular transaction. Would a similar argument justify couples about to be married picking the package of laws that would apply to their marriage (and, should it occur, divorce)? This article considers the question, investigating the way that giving couples such choice of law powers might overcome problems that arise from the current conflict of laws regime. The article also considers the countervailing arguments based on third-party effects, bounded irrationality, and the states' interests in the marital status of their citizens.

Abstract:
With the prominence of arguments for and against same-sex marriage and covenant marriage, the state regulation of marriage has again assumed prominence.

The claim, prominent in both judicial opinions and commentaries, that states have a substantial interest in the marital status of their citizens, reflects a - usually unstated and unargued-for = view of federalism. Additionally, the claim runs up against certain constitutional provisions (e.g., the right to interstate travel and the right to privacy), certain pieces of federal legislation, and the reality of a mobile society, which combine to undermine the ability of individual states to regulate marriage, as well as the justifications for their doing so. The paper also considers whether it is coherent for states to claim a substantial interest in their citizens' being married, while simultaneously making exit from marriage easy (through no-fault divorce) and creating no significant disincentives for cohabitation or raising children outside of marriage.

marriage, federalism, covenant marriage, same-sex marriage, DOMA

Abstract:
One of the great complications of the current marriage debates is the way that federalism and conflict of law issues interact - both at the level of principle and constitutional doctrine - in the area of marriage and divorce. This article begins by looking at federalism in the context of domestic relations at a general level. It then considers how current family law rules and constitutional constraints complicate the analysis. Finally, it considers the way in which recognizing party choice of law might respond to some, but by no means all, of the problems in the area.

Family Law, conflict of laws, constitutional law, marriage, federalism

Abstract:
Focusing on the works of Philip Bobbitt and Frederick Schauer, the article analyzes the extent to which purely descriptive theory is possible in discussing legal reasoning, or, more broadly, legal doctrine or law in general. The article considers approaches to legal practice and legal theory that seem to fall between pure description and pure prescription, including conceptual analysis and the interpretive theory associated with Ronald Dworkin.

Abstract:
A number of important legal theorists have recently argued for metaphysically realist approaches to legal determinacy grounded in particular semantic theories or theories of reference, in particular, views of meaning and reference based on the works of Putnam and Kripke. The basic position of these theorists is that questions of legal interpretation and legal determinacy should be approached through semantic meaning. However, the role of authority (in the form of lawmaker choice) in law in general, and democratic systems in particular, require that these realist solutions to the problem of legal determinacy be rejected, or at least significantly revised.

legal determinacy, semantic theories, Michael Moore

Abstract:
Lawyers and legal academics are present in disproportionate numbers in the debates about marriage reform (e.g., regarding DOMA, same-sex marriage, and covenant marriage). This paper (presented as part of a Conference on the Meaning of Marriage at the University of San Diego Institute of Law and Philosophy) raises questions regarding the extent to which lawyers and legal academics have any special expertise to offer the marriage debates.

There are of course constitutional aspects to the debates, though these can be overstated - important aspects of the debates concern policy issues for which the Constitution arguably neither requires nor forbids particular options. To the extent the debate turns on controversial sociological questions (e.g., the effect of different parenting structures on children) or historical claims (e.g., the extent to which marriage has changed over time), lawyers and legal academics likely do not have much to add, and should probably defer to experts from other fields. At the same time, it is important to emphasize that the regulation of marriage often involves reference to the complex rules of federalism and conflict of laws, so there is certainly still a place and a need for legal contributions to these controversies.

Marriage, Same-Sex Marriage, Conflict of Laws

Abstract:
Chapter 7 of the American Law Institute's Principles of the Law of Family Dissolution discusses agreements: premarital agreements, marital agreements, and separation agreements. This article (written for an October 2004 Harvard University conference on the ALI Principles) offers an overview of the approach of the ALI Principles, comparing its recommendations to current law. The ALI Principles consistently seeks a balance between advancing the autonomy interests of the parties and protecting vulnerable parties who might be harmed by enforcement. While one might argue for shifting the balance somewhat more towards the enforcement of agreements, the primary focus of the article is on the aspects of the debate that the ALI Principles discusses too briefly, or does not discuss at all: for example, arguments for treating marital agreements differently from premarital agreements; and arguments for the special treatments of religious premarital agreements (Ketubahs and Mahrs), private covenant marriage agreements, and reconciliation agreements.

premarital agreements, antenuptial agreements, marital agreements, separation agreements

Abstract:
This review of June Carbone's book, "From Partners to Parents: The Second Revolution in Family Law" (Columbia U. Pr., 2000), considers not only the title theme-- how societal norms regarding the family and legal regulation of the family have changed their focus from the way adult partners treat one another to parents' rights and duties regarding their children-- but also additional themes raised by the book's discussions. In particular, the Review emphasizes the way in which Family Law writers have resisted or adapted economic approaches to law, and the problem of legal reform in Family Law at a time of changing norms and attitudes.

Abstract:
This article was part of a conference on Brian Tamanaha's book, Realistic Socio-Legal Theory (Oxford, 1997). This article summarizes how Tamanaha's work seeks to merge the sociology of law with conceptual legal theory, though not always fully successfully. Tamanaha does not appreciate the extent to which the two tasks - sociology and conceptual analysis - may have different aims, and therefore their theories will be constructed along different and inconsistent lines. The article also considers the extent to which conceptual theories do or do not need to make ambitious metaphysical claims, and the connections between conceptual theories in jurisprudence and empirical data about the way law is practiced.

Abstract:
It has become increasingly common for legal positivist theorists to claim that the primary objective of legal theory in general, and legal positivism in particular, is "explaining normativity." The phrase "explaining normativity" can be understood either ambitiously or more modestly. The more modest meaning is an analytical exploration of what is meant by legal or moral obligation, or by the authority claims of legal officials. When the term is understood ambitiously - as meaning an explanation of how conventional and other empirical facts can give rise to moral obligations - as many legal positivist theorists seem to be using the phrase, the project is contrary to basic tenets of legal positivism, and has regularly led theorists to propose doubtful theories that ignore "is"/"ought" divisions.

legal positivism, analytical legal theory, natural law theory

Abstract:
Anthony Sebok's book, Legal Positivism in American Jurisprudence (1998) offers novel and interesting claims about the connection between constitutional theory and legal theory, in the course of telling the history of each in America during this century. The book is at its best in analyzing Legal Process, an approach to law that has been overlooked or discounted in recent years. Sebok brings new ideas and new research to his detailed discussion of that school of thought. The book is less successful in its most controversial claims, attempting to tie the Legal Positivism of John Austin and H.L.A. Hart with both Legal Formalism and Legal Process. The argument goes wrong by conflating conceptual theories of law with theories of adjudication.

Abstract:
The article (given as the 2007 Siben Lecture at Hofstra Law School) explores the courts' treatment of agreements in Family Law: generally supportive of separation agreements; open to premarital agreements, though with reluctance and suspicion; and hostile to co-parenting agreements by same-sex couples. In general, the doctrines show that the State is still protective of the prerogative of determining parental status. However, as the article explores, at least in the State's treatment of co-parenting agreements, nothing of great value is protected, and much of value is wasted, by not enforcing the contractual commitments.

family law, same-sex marriage, co-parenting agreements, separation agreements, premarital agreements

Abstract:
This paper, written for a Conference on Multi-Tiered Marriage, explores what the State role in regulating marriage is, and should be, given the growing set of alternative marriage options, and the greater decentralization of marriage regulation in the United States. The paper considers private agreements, menus of options, choice of law, and the delegation of marriage regulation to religious institutions. The paper suggests that the greater diversity and decentralization of marriage regulation is largely a positive development, allowing parties to structure marriages according to their individual needs and sincere religious beliefs. However, there is a need for limits: to protect vulnerable parties, and to reflect beliefs of what is minimally necessary for marriage to work for the social interest rather than against it.

marriage, divorce, covenant marriage, premarital agreements

Abstract:
The article uses Joseph Raz's work as the starting point for a general discussion of the role of necessity and essence in jurisprudence. Analytical legal theorists commonly assert (or assume) that they are offering conceptual truths, claims regarding attributes necessarily true of all legal systems. Is it tenable to speak about necessary truths with a humanly created institution like law? Upon closer investigation, the use of necessary truths in writers like Raz and Jules Coleman clearly differs from the way such terms are used in classical metaphysics, and even in contemporary discussions of natural kind terms. Nonetheless, theorists making conceptual statements regarding law are making significant and ambitious claims that need to be defended - for example, against naturalists like Brian Leiter, who doubt the value of conceptual analysis, and normative theorists like Stephen Perry, who argue that assertions about the nature of law require value-laden moral and political choices between tenable alternatives.

Abstract:
To answer methodological questions about whether legal theory can be descriptive, or whether instead it must instead always include moral elements, one must first confront more basic (and philosophically prior) questions regarding the subject and objective of legal theorizing. Finding a stable subject for a "theory of law" is not a simple matter. Significant progress has been made by positing "our concept of '"law'" as the proper focus for legal theories. There is a second foundational question of jurisprudence: what grounds the truth or falsity of legal propositions. Here, the range of tenable answers varies from the purely empirical to the interpretive to the heavily morality-dependent. However, even if one's ultimate answer is ultimately purely empirical, the argument that gets one there may itself need to be deeply evaluative.

Jurisprudence, legal positivism, natural law theory, hermeneutics, legal truth, historical jurisprudence

Abstract:
Each generation of law scholars, policy analysts, and politicians comes up with bogeymen: outcomes so scary that the mere hint that a policy, rule, or case decision might lead to that outcome is treated as a strong argument for a contrary view. This paper consders, briefly, a recent bogeyman of parental rights cases: the recognition of three (or more) legal parents. Two recent cases recognizing three legal parents, in the context of same-sex parenting and the use of new reproductive technologies, evoked outrage from some commentators. This paper considers the reasons behind the strong reaction, and whether the response was justifed. The paper notes that three parents is ever more common as a social fact, and also occasionally pesent as a legal reality, even (or especially) in the sort of cases that do not evoke strong responses.

parental rights, multiple parenting, family law

Abstract:
Premarital agreements are agreements entered immediately before marriage, usually with the intention of controlling the disposition of property upon divorce. These agreements were once universally treated as void because contrary to public policy, but are currently enforceable in all 50 states. Approximately half the states impose significant tests of procedural fairness and/or substantive fairness before enforcing the agreements. The other half treat premarital agreements more or less like other contracts.

The academic commentary on these sorts of agreements also seems split: between those who think these sorts of contracts should always be enforced, and that these agreements raise no special concerns (the optimists); and those who believe that these sorts of contracts should never be enforced because they are almost always unfair, and may work to increase the subordination of women (the pessimists).

The article emphasizes, in response to the optimists, that premarital agreements frequently raise serious concerns about duress and about rationality/voluntariness. However, given the value of allowing parties some freedom to set the terms on which they enter marriage, it would be useful to enforce these agreements, despite their problems.

In response to the pessimists, the article emphasizes the extent to which modern contract law analysis (including the UCC treatment of good faith; recent case-law on duress and undue influence, commentary about different treatment for long-term/relational contracts, and Prof. Richard Craswell's analysis of unconscionability) can protect against most, but by no means all, of the unfairness that can result from enforcement.

Abstract:
The article considers the application of general theories of federalism (e.g., states as laboratories and competitive federalism) to the issue of physician-assisted suicide. The article also uses the analogies of same-sex marriage and medical marijuana to explore some of the moral and policy issues raised by this intersection of medical ethics and federalism.

Abstract:
According to some prominent commentators, John Stuart Mill’s “Harm Principle” raises important challenges to how we should understand contract law, and perhaps also for how it should be reformed. This paper explores this challenge, considering first how the purely prescriptive “Harm Principle” could be relevant to theories of contract law, which are usually understood as descriptive, explanatory or interpretive. Most theorists who view the harm principle as relevant to contract theory and practice see contract law as being essentially about the enforcement of promises.

This paper then raises questions about the applicability of the harm principle based on a view of contract law that sees contract enforcement (at its best) as a resource available to people (to allow them to make a certain kind of commitment that would otherwise not be possible) rather than a duty imposed upon them.

Finally, this paper considers limits to this view, based in part on the limits in the role consent actually plays in contract practice, and in part on the moral limits of consent.

contract, promise, harm principle, consent

Abstract:
Books reviewed:

Hodges,
Multi-Party Actions

Katz et al.,
Cross Currents: Family Law and Policy in the US and England

Paulus,
Die internationale Gemeinschaft in Volkerrecht

Norrie,
Punishment, Responsibility, and Justice: A Relational Critique

Bell,
Peace Agreements and Human Rights

Powell,
Sir James Whitelock's Liber Famerlicus 15701632: Law and Politics in Early Stuart England

Clam,
Droit et societe chez Niklas Luhmann. La contingence des normes

Abstract:
The article considers Robert Summers' new book (Summers 2006), in the context of Summers' earlier work and the role of form and formalism in other jurisprudential discussions. While accepting the value of a form-centered approach to studying law, the article questions Summers' claim that his approach is clearly superior to (and not merely complementary with) traditional analytic theories, like those of Hart and Kelsen. The article also suggests that the book's discussion of form in contract and commercial law is somewhat disappointing, given Summers' expertise in this area, and the many difficult form-related questions that area raises.

Abstract:
One standard criterion for there being objectivity in an area of discourse is that there is conceptual space between what someone thinks to be the case and what actually is the case. That is, participants can be mistaken. This article explores one aspect of the objectivity debate as regards law: does it make sense to say that all legal officials or practitioners in a jurisdiction are mistaken (over a significant period of time) about some legal proposition? The possibility of legal error is important to discourse within and about the law. In contrast to the views of some American legal realists, it is important to deny that law is only what the officials declare it to be. However, as this article argues, claims of long-term global error in law are more problematic. The truth of legal propositions seems to be a complex function of official actions and the meaning of the terms used in authoritative legal texts. Because of the conventional nature of law, there are problems with claiming global error regarding propositions of (within) law, the existence of legal norms, and structural priorities among types of legal norms. At times, the law may in fact simply be what officials (collectively) say it is, over the long term. However, the article also notes areas where claims of long-term global error are more sustainable: where the law incorporates a term from another discourse, or where the law purports to interpret an authoritative text.

Abstract:
There is an ongoing debate in the philosophical and jurisprudential literature regarding the nature and possibility of Contract theory. On one hand, are those who argue (or assume) that there is, or should be, a single, general, universal theory of Contract Law, one applicable to all jurisdictions and all times. On the other hand, are those who assert that Contract theory should be localized to particular times and places, perhaps even with different theories for different types of agreements. This article considers one facet of this debate: evaluating the relevance of the fact that the remedies available for breach of contract can vary significantly from one jurisdiction to another. This wide variation in remedies for breach of a (contractual) promise is one central difference between promises in morality and enforceable agreements in law. The article asserts that variation of remedies strongly supports the conclusion that there is (and can be) no general, universal theory of Contract Law.

Abstract:
Legal theory encompasses a wide range of disciplines and approaches, from analytical theories to critical approaches and from economic analysis to postmodernism. A Dictionary of Legal Theory, published by Oxford University Press, offers both simple introductions to the standard terms and key figures of each area, and more detailed discussions of the central topics.

legal theory, legal philosophy, jurisprudence, law and economics