Law Commons^™

Freedom, Choice, And Contracts, Hanoch Dagan, Michael A. Heller

Faculty Scholarship

In “The Choice Theory of Contracts,” we explain contractual freedom and celebrate the plurality of contract types. Here, we reply to critics by refining choice theory and showing how it fits and shapes what we term the “Contract Canon”.

I. Freedom. (1) Charles Fried challenges our account of Kantian autonomy, but his views, we show, largely converge with choice theory. (2) Nathan Oman argues for a commerce-enhancing account of autonomy. We counter that he arbitrarily slights noncommercial spheres central to human interaction. (3) Yitzhak Benbaji suggests that choice theory’s commitment to autonomy is overly perfectionist. Happily, in response to Benbaji, …

Choice Theory: A Restatement, Michael A. Heller, Hanoch Dagan

Faculty Scholarship

This chapter restates choice theory, which advances a liberal approach to contract law. First, we refine the concept of autonomy for contract. Then we address range, limit, and floor, three principles that together justify contract law in a liberal society. The first concerns the state’s obligation to be proactive in facilitating the availability of a multiplicity of contract types. The second refers to the respect contract law owes to the autonomy of a party’s future self, that is, to the ability to re-write the story of one’s life. The final principle concerns relational justice, the baseline for any legitimate use …

Three By Posner, Victor P. Goldberg

Faculty Scholarship

If Richard Posner did not invent the term “efficient breach,” he at least was its most aggressive marketer. I confess that nowadays I do not find the concept particularly useful, but that does not detract from its value. It was a catalyst, forcing scholars to consider the economic function of contract remedies. Any assessment of Judge Posner’s contracts jurisprudence must acknowledge that contribution.

In this paper, I will consider three of his opinions that appear with some regularity in contracts casebooks – Northern Indiana Public Service Company v. Carbon County Coal Company, Empire Gas v. American Bakeries, and Lake River …

Divergence And Convergence At The Intersection Of Property And Contract, Giuseppe Dari-Mattiacci, Carmine Guerriero

Faculty Scholarship

In this Article, we study rules that solve the conflict between the original owner and an innocent buyer of a stolen or embezzled good. These rules balance the protection of the original owner’s property and the buyer’s reliance on contractual exchange, thereby addressing a fundamental legal and economic trade-off. Our analysis is based on a unique, hand-collected dataset on the rules in force in 126 countries. Using this data, we document and explain two conflicting trends. There is a large amount of first-order divergence: both rules that apply to stolen goods and those that apply to embezzled goods vary widely …