Law Commons^™

Nonparty Interests In Contract Law, Omri Ben-Shahar, David A. Hoffman, Cathy Hwang

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Contract law has one overarching goal: to advance the legitimate interests of the contracting parties. For the most part, scholars, judges, and parties embrace this party primacy norm, recognizing only a few exceptions, such as mandatory rules that bar enforcement of agreements that harm others. This Article describes a distinct species of previously unnoticed contract law rules that advance nonparty interests, which it calls “nonparty defaults."

In doing so, this Article makes three contributions to the contract law literature. First, it identifies nonparty defaults as a judicial technique. It shows how courts deviate from the party primary norm with surprising …

How Practices Make Principles, And How Principles Make Rules, Mitchell N. Berman

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The most fundamental question in general jurisprudence concerns what makes it the case that the law has the content that it does. This article offers a novel answer. According to the theory it christens “principled positivism,” legal practices ground legal principles, and legal principles determine legal rules. This two-level account of the determination of legal content differs from Hart’s celebrated theory in two essential respects: in relaxing Hart’s requirement that fundamental legal notions depend for their existence on judicial consensus; and in assigning weighted contributory legal norms—“principles”—an essential role in the determination of legal rights, duties, powers, and permissions. Drawing …

The Criminogenic Effects Of Damaging Criminal Law’S Moral Credibility, Paul H. Robinson, Lindsay Holcomb

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The criminal justice system’s reputation with the community can have a significant effect on the extent to which people are willing to comply with its demands and internalize its norms. In the context of criminal law, the empirical studies suggest that ordinary people expect the criminal justice system to do justice and avoid injustice, as they perceive it – what has been called “empirical desert” to distinguish it from the “deontological desert” of moral philosophers. The empirical studies and many real-world natural experiments suggest that a criminal justice system that regularly deviates from empirical desert loses moral credibility and thereby …

But What Is Personalized Law?, Sandra G. Mayson

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In Personalized Law: Different Rules for Different People, Omri Ben-Shahar and Ariel Porat undertake to ground a burgeoning field of legal thought. The book imagines and thoughtfully assesses an array of personalized legal rules, including individualized speed limits, fines calibrated to income, and medical disclosure requirements responsive to individual health profiles. Throughout, though, the conceptual parameters of “personalized law” remain elusive. It is clear that personalized law involves more data, more machine-learning, and more direct communication to individuals. But it is not clear how deep these changes go. Are they incremental—just today’s law with better tech—or do they represent …