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Full-Text Articles in Law
A Contractarian Approach To Unconscionability, Horacio Spector
A Contractarian Approach To Unconscionability, Horacio Spector
Chicago-Kent Law Review
In this paper I discuss two nonpaternalistic defenses of the doctrine of unconscionability in contract law. The first approach, proposed by Seana Shiffrin, relies on the moral ban to collaborate with other agents' immoral plans. Because this prohibition falls also on the judge, she must refrain from enforcing unfair or exploitative contracts. The second approach regards the unconscionability doctrine as one limitation on freedom of contract that rational contractors would choose in the course of adopting the fundamental terms of social cooperation. I assess the implications and merits of the two approaches. 'The contractarian approach is capable of justifying procedural …
Banging On The Backdoor Draft: The Constitutional Validity Of Stop-Loss In The Military, Evan M. Wooten
Banging On The Backdoor Draft: The Constitutional Validity Of Stop-Loss In The Military, Evan M. Wooten
William & Mary Law Review
No abstract provided.
Introduction, Horacio Spector
Natural Rights And Two Conceptions Of Promising, Peter Vallentyne
Natural Rights And Two Conceptions Of Promising, Peter Vallentyne
Chicago-Kent Law Review
Does one have an obligation to keep one's promises? I answer this question by distinguishing between two broad conceptions of promising. On the normativized conception of promising, a promise is made when an agent validly offers to undertake an obligation to the promisee to perform some act (i.e., give up a liberty-right in relation to her) and the promisee validly accepts the offer. Keeping such promises is morally obligatory by definition. On the non-normativized conception, the nature of promising does not conceptually entail any connection with the obligation to keep promises. A promise might be understood, for example, as an …
Promises, Expectations, And Rights, Eduardo Rivera-Lopez
Promises, Expectations, And Rights, Eduardo Rivera-Lopez
Chicago-Kent Law Review
I address the problem of why promises create obligations. First, I spell out and object the so-called "expectational account" according to which the duty to keep our promises arises from the fact that, when we promise to do something, we create an expectation in the promisee, which we have the duty not to disappoint. It has been claimed that this account is circular since we can only raise the expectation, in the appropriate sense, if we already have the moral duty to keep our promise. I argue, against Scanlon and others, that such circularity is unavoidable. In the second section, …
Kant On "Why Must I Keep My Promise?", B. Sharon Byrd, Joanchim Hruschka
Kant On "Why Must I Keep My Promise?", B. Sharon Byrd, Joanchim Hruschka
Chicago-Kent Law Review
This Article claims that for Kant a contractual obligation generates a universal right, meaning a right against everyone. Accordingly, a right to performance of a contract is more similar to a right in rem than to a right in personam, and failing to perform a contract is more similar to theft than to moral failure to do as promised. Part I shows that for Kant accepting a promise means taking possession of the promisor's choice to commit an act in the future. Part II explains why it is possible to acquire someone else's choice and how one does so in …
Rational Choice And Reasonable Interactions, Bruce Chapman
Rational Choice And Reasonable Interactions, Bruce Chapman
Chicago-Kent Law Review
Game theory probably offers the most well-known account of how rational agents interact in strategic situations. The rational thought processes that are involved, while enormously sophisticated, remain very private for each agent. Less well known is the alternative account that is offered by law and legal theory, an account where agents interact, and understand their interaction, under the idea of public (or objective) reasonableness. This Article argues, using some simple examples, that the legal account does better than the game theoretic account in explaining the actual levels of cooperation and coordination we observe across rational individuals in strategic situations.
Appraising A Presumption: A Modern Look At The Doctrine Of Specific Performance In Real Estate Contracts, Jason S. Kirwan
Appraising A Presumption: A Modern Look At The Doctrine Of Specific Performance In Real Estate Contracts, Jason S. Kirwan
William & Mary Law Review
No abstract provided.
Construction Law, K. Brett Marston, J. Barrett Lucy
Construction Law, K. Brett Marston, J. Barrett Lucy
University of Richmond Law Review
Since the last survey of this topic published in the fall of 2000, construction law in Virginia has continued to evolve in an array of areas involving issues such as claims on surety bonds, claims against public entities, construction-related products like Exterior Insulation Finishing Systems ("EIFS"), and mechanic's liens. These changes have implicated and better defined legal principles including the "no damage for delay" clause on public contracts, requirements for privity in breach of warranty claims, and implied indemnification. The significant issues in construction law have arisen both in a number of significant judicial decisions, mostly from the Supreme Court …
Damages For Mental Distress And Other Intangible Loss In A Commercial Context, Shannon O'Byrne
Damages For Mental Distress And Other Intangible Loss In A Commercial Context, Shannon O'Byrne
Dalhousie Law Journal
As a general rule, contracts law does not permit an award of general damages for mental distress or other intangible loss. There are several rationales for this, including: plaintiffs are to bear their disappointment or upset with mental fortitude; without the rule, courts would be awash in litigation since every breach of contract brings with it some degree of emotional distress; without the rule, plaintiffs may fabricate or exaggerate the degree of their upset; and the rule simply reflects the lack of foreseeability of such loss under Hadley v. Baxendale. Notwithstanding the general rule, courts have awarded mental distress in …
The Following Article Addresses A Package Of Immigration Bills That Would Have Affected A Variety Of Titles In The Official Code Of Georgia Annotated, Susan S. Blum
Georgia State University Law Review
HR 256 - The resolution would have proposed an amendment to the Constitution of the State of Georgia to bar undocumented immigrants from the following: receiving any public services provided by the state, receiving any publicly funded health care services provided by the state, accessing public elementary and secondary schools of the state, and attending any public postsecondary institution of the state. The resolution would have presented the proposed constitutional amendment to Georgia voters for ratification or rejection. SB 169 - The bill would have prohibited any department, agency, instrumentality, or political subdivision of the State of Georgia from entering …
What Contracts Cannot Do: The Limits Of Private Ordering In Facilitating A Creative Commons , Niva Elkin-Koren
What Contracts Cannot Do: The Limits Of Private Ordering In Facilitating A Creative Commons , Niva Elkin-Koren
Fordham Law Review
No abstract provided.
The "Incomplete Contracts" Literature And Efficient Precautions, Richard Craswell
The "Incomplete Contracts" Literature And Efficient Precautions, Richard Craswell
Case Western Reserve Law Review
No abstract provided.
Incomplete Contracts And The Theory Of Contract Design, Robert E. Scott, George G. Triantis
Incomplete Contracts And The Theory Of Contract Design, Robert E. Scott, George G. Triantis
Case Western Reserve Law Review
No abstract provided.
When Contracting Around The Law Will Not Work: The Potential Inability To Expressly Prohibit Punitive Damages In Arbitration, Alexia Norris
When Contracting Around The Law Will Not Work: The Potential Inability To Expressly Prohibit Punitive Damages In Arbitration, Alexia Norris
Journal of Dispute Resolution
Just as the availability of all appropriate remedies is an important part of judicial litigation, the attempt to identify and limit those remedies is an issue in an arbitration proceeding. After the United States Supreme Court's 1995 decision in Mastrobuono v. Shearson Lehman Hutton, Inc., it seemed clear that parties would be allowed to seek punitive damages if an agreement did not expressly prohibit such damages. Even so, parties continue to falter in writing agreements meant to contain the proper language that will succeed in limiting the availability of certain remedies. This is due to the continued confusion over how …