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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 …
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.
Introduction, Horacio Spector