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Abstract: The contemporary philosophy of contract law must reconcile apparently incommensurable theories of contractual obligation, namely those based on moral rights and those based on economic efficiency. In his recent book, Contract Theory, Stephen Smith seeks to solve this problem by arguing that economic theories fail to explain contract law while rights-based theories adequately account for the law. His argument, however, rests on a misunderstanding of economic and legal reasoning, and results in implausible claims about the contours of contract law. Rather than dismissing one or the other of these two approaches, philosophers of contract law should look for ways of providing a principled integration of them. This paper argues that the Rawlsian notion of the priority of liberty provides one path toward such a principled integration.
contract law, philosophy of law, Rawls, law & economics
Abstract: The law of contracts is complex but remarkably stable. What we lack is a widely accepted interpretation of that law as embodying a coherent set of normative choices. Some scholars have suggested that either economic efficiency or personal autonomy provide unifying principles of contract law. These two approaches, however, seem incommensurable, which suggests that we must reject at least one of them in order to have a coherent theory. This article dissents from this view and has a simple thesis: Economic accounts of the current doctrine governing contract damages have failed, but efficiency arguments remain key to any adequate theory of contract law. Contractual liability - like virtually all civil liability - is structured around the concept of bilateralism, meaning that damages are always paid by defeated defendants to victorious plaintiffs. Ultimately, economic accounts of this basic feature are unpersuasive. This criticism, however, leaves untouched many of the key economic insights into the doctrine of contract damages. The limited failure of economic interpretations points toward a principled accommodation of both autonomy and efficiency in a single vision of contract law where notions of autonomy provide the basic structure and economics fills in most of the doctrinal detail.
contracts law & economics philosophy, jurisprudence, damages, remedies
Abstract: One of the central problems of contracts jurisprudence is the conflict between autonomy theories of contract and efficiency theories of contract. One approach to solving this conflict is to argue that in the realm of contracts between corporations, autonomy theories have nothing to say because corporations are not real people with whose autonomy we need to be concerned. While apparently powerful, this argument ultimately fails because it implicitly assumes theories of the corporation at odds with economic theories of law. Economics, in turn, offers a vision of the firm that is quite hospitable to autonomy theories of contract. The failure of this argument suggests that a more fruitful avenue for reconciling these competing approaches is to find a principled way of integrating them into a single theory.
Contracts, Autonomy Theories, Jurisprudence, Law & Economics
Abstract: Much of the debate in the recent revival of interest in statutory interpretation centers on whether or not courts should use legislative history in construing statutes. The consensus in favor of this practice has come under sharp attack from public choice critics who argue that traditional models of legislative intent are positively and normatively incoherent. This paper argues that in actual practice, courts look at a fairly narrow subset of legislative history. By thinking about the power to write that legislative history as a property right and legislatures as markets, it is actually possible to use Coase's Theorem and the concept of Pareto optimality to justify current judicial practice. However, such a justification suggests that certain aspects of current practice should be changed.
statutory interpetation, legislative history, textualism, law and public choice, law
Abstract: A number of American religious denominations - Quakers, Baptists, Mormons, and others - have tried with varying degrees of success to opt out of the secular legal system, resolving civil litigation between church members in church courts. Using the story of the rise and fall of the jurisdiction of Mormon courts over ordinary civil disputes, this article provides three key insights into the interaction between law and religion in nineteenth-century America. First, it dramatically illustrates the fluidity of the boundaries between law and religion early in the century and the hardening of those boundaries by its end. The Mormon courts initially arose in a context in which the professional bar had yet to establish a monopoly over adjudication. By century's end, however, the increasing complexity of the legal environment hardened the boundaries around the legal profession's claimed monopoly over adjudication. Second, the decline of the Mormon courts shows how allegiance to the common-law courts became a prerequisite of assimilation into the American mainstream. While hostility to the secular courts had been a hallmark of a major stream of American Protestantism during the colonial period and the first decades of the Republic, by the end of the nineteenth century, Mormons' rejection of those courts marked them off as dangerous outsiders. Part of the price of their acceptance into the national mainstream was the abandonment of legal distinctiveness. Finally, the story of the Mormon courts also illustrates the importance of law for the development of religious beliefs and practices. Other scholars have documented the "public law" side of this story, showing how the federal government's effort to eradicate Mormon polygamy was central to Mormon experience in the last half of the nineteenth century and ultimately forced a revolution in Mormon beliefs and practices. The rise and fall of the Mormon court system, however, shows that private law could exercise no less of a power over the religious imagination.
Ecclesiastical Courts, Mormons, Quakers, Puritans, Baptists, Civil Disputes, ADR, Legal History, Law & Religion
Abstract: This is an essay on the past practice and future possibilities of Mormon legal history. For most legal scholars, the fact that there even is such a thing as "Mormon legal history" comes as a surprise, and the idea that it "should be proved . . . to be worthy of the interest of an intelligent man" may sound dubious at best. In part, such a reaction stems from the marginal status of Mormons. At a broader level, however, the invisibility of Mormon legal history is simply part of the broader problem of the discussion of religion within the legal academy. The thesis of this essay, however, is that the relative invisibility of Mormon legal history lies mainly in the idiosyncratic intellectual development of Mormon legal historiography itself. By explaining that development and introducing the work that has already been done on Mormon legal history, I hope to assist future scholars to better integrate Mormon legal experience into the mainstream discussions of the legal academy.
legal history law & religion Mormonism historiography
Abstract: Within Mormonism, the concept of church doctrine is frequently invoked in theological discussions. What is meant by this term, however, is not entirely clear. This essay argues that the question what is church doctrine? can be usefully analogized to the question what is the law? It then uses the contemporary philosophy of law to analyze the concept of church doctrine within Mormonism
Mormonism, church doctrine, theology, philosophy
Abstract: Since the end of the nineteenth century contract law has been shrinking as specialized bodies of law such as labor law or employment law are created to govern particular kinds of transactions. The trend is not an accident. Many contract theorists see the generality of contract law as a historical accident born of a formalism whose basis was ultimately more aesthetic than functional. Accordingly, calls for more specialized bodies of law have generally met with arguments based on the specifics of the proposals rather than any defense of generality per se. This article breaks with the conventional wisdom by arguing that the generality of contract law serves concrete, pragmatic goals, namely the insulation of the law against capture by special interests and the facilitation of a pragmatic search for solutions to collective problems. It then applies these arguments to some of the transactions figuring in the current financial crisis, looking at how the tension between specialization and generalization has played out in the rise of asset securitization law out of the law of contracts.
contracts, generality, specificity, public choice, asset securitization, assignment, pragmatism
Abstract: This brief piece introduces the contract law section of a symposium on law and morality. I argue that notwithstanding the empirical turn in recent scholarship, moral reflection remains important for the study of contract law for two reasons. First, because without normative theories we cannot construct what Hart called internal interpretations of the law. In the absence of such interpretations, we are left with a basic puzzle about the purposes and coherence of the law that we already have. Second, contrary to the claims made by some empiricists, there are genuine conflicts about the merits and implications of our normative commitments. Indeed, when moral claims are stated at a level that commands universal assent, they tend to become banal.
Contracts Jurisprudence
Abstract: A number of American religious denominations - Quakers, Baptists, Mormons, and others - have tried with varying degrees of success to opt out of the secular legal system, resolving civil litigation between church members in church courts. This paper looks at this phenomenon in the Mormon context, asking why Latter-day Saints moved civil disputes into church courts during the nineteenth century and why they abandoned the practice in the early twentieth century. It presents my preliminary research on a much larger project on civil litigation in nineteenth-century Mormon courts.
Abstract: This is a very brief description of Reynolds v. United States, 98 U.S. 145 (1879) and its legal and historical significance for a forthcoming ENCYLOPEDIA OF MORMON HISTORY.
Religion, First Amendmendment, Polygamy, Free Exercise Clause, Constitution, Mormon
Abstract: This paper provides a philosophical analysis of the concept of "church doctrine" within Mormon theology and practice. Building on an earlier essay that analyzed "church doctrine" within Mormonism using the philosophy of law, this paper turns to the way in which it functions as an authority within Mormon discussions.
Mormonism, Theology, Philosophy
Abstract: The Church of Jesus Christ of Latter-day Saints (the Mormons) has the dubious distinction of having passed through the most prolonged and intense confrontation between church and state in American history. The earliest history of the Mormons was marked by hostile and violent confrontations with their neighbors as they were driven from state to state. After forming their own commonwealth in the remoteness of the American Great Basin, they faced further confrontation, this time with a federal government bent of eradicating the Mormon practice of plural marriage and the unique economic and political institutions and practices that the Mormons had created. In 1890, the church publicly abandoned plural marriage and the legal pressure abated. During the course of the twentieth-century the legal challenges faced by the church largely centered on its aggressive international expansion, which brought the Mormons into contact with legal regimes all over the world. This paper argues that despite the dramatic changes in Mormon church-state practices there is nevertheless a consistent and coherent approach focusing on the theological imperative to maintain the independence and continuity of the church's institutional structure.
Church and State, Law and Religion, Mormons, Polygamy, Missionaries
Abstract: This article provides a brief review of Sarah Barringer Gordon's book, THE MORMON QUESTION, relating it to broader themes in Mormon and legal history and theory.
Polygamy, Mormonism, Law & Religion, Legal History, Free Exercise
Abstract: Black-letter law declares that a contract to perform personal services cannot be specifically enforced. Many courts, scholars, and commentators have claimed that such enforcement would constitute “involuntary servitude” under the Thirteenth Amendment. This Article, however, rejects that conventional wisdom. A careful reading of the history leading to the ratification of the Thirteenth Amendment reveals that, at the time of its adoption, “involuntary servitude” had a specific legal meaning, one that did not extend to any specific enforcement of a personal service contract. Rather, courts that were forced to draw the line between contract enforcement and “involuntary servitude” looked to coercion in the creation of the contract, the length of its duration, the power of the master over the servant, and the adequacy of the servant’s compensation to determine if enforcement of an agreement would constitute “involuntary servitude.” Since the Thirteenth Amendment’s adoption, the U.S. Supreme Court has never found involuntary servitude in any case except those in which at least one of these factors and arguably all four of them was present. In short, neither the original meaning of “involuntary servitude” nor its subsequent interpretation by the Court justifies a per se prohibition on specific performance of personal service contracts.
contracts, specific performance, remedies, thirteenth amendment, involuntary servitude, constitutional interpretation, originalism
Abstract: Why is religious freedom valuable? This is a basic question necessarily presupposed in any discussion of the free exercise clause or other legal protections for freedom of religion. In this paper, I argue that at present American jurisprudence lacks a coherent theory of religious freedom. In the beginning, the arguments for religious liberty were cast in explicitly theological terms. In a pluralistic age, however, these theological arguments lack any real traction. Using Pascal's wager as an analogy, however, it is possible to recast the theological justification for religious freedom in terms suitable for a pluralistic society. Indeed, the argument can be formalized into a simple economic claim: religious liberty is Kaldor-Hicks efficient.
Law & Economics, Law & Religion, Religious Freedom, Pascal
Abstract: Legal scholars have recently turned their attention to “religious legal theory,” asking what various religious traditions have to say about law and legal practices. While some traditions - such as Islam or Judaism - have well-developed legal traditions, understanding what less juristic faiths have to say about law is more difficult. This article seeks to contribute to this discussion by asking how Mormonism might be used to think about legal questions. Lacking a formal theological or juristic tradition, the article argues that one may nevertheless turn to Mormon practices for insights. Using the adjudication of civil disputes in nineteenth-century church courts as an example, this article develops Mormon theories of property and contract.
Legal theory, law and religion, jurisprudence, property, contract, private law, church courts, Mormonism, markets
Abstract: In her book THE MORMON QUESTION, Sarah Barringer Gordon offers the most sophisticated historical discussion to date of the massive legal battle fought in the nineteenth century between the federal government and the Mormon Church over the practice of polygamy. In this article, I offer a review of Gordon's work, identifying its important contributions and situating it within the literature of both American legal history and Mormon history. Finally, I suggest that Gordon's work offers Mormons an important opportunity to reassess their own legal history and the place of law in their religious thinking.
Legal History, Mormonism, Law & Religion, First Amendment, Polygamy
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