Law Commons^™

Statutory Interpretation In Econotopia, Nathan B. Oman

Nathan B. Oman

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 possible to use Coase's Theorem and the concept …

Specific Performance And The Thirteenth Amendment, Nathan B. Oman

Nathan B. Oman

No abstract provided.

Sharia Law Poses No Threat To American Courts, Nathan B. Oman

Nathan B. Oman

No abstract provided.

Religious Tests And The British Monarchy, Nathan B. Oman

Nathan B. Oman

No abstract provided.

Religion And For-Profit Corporations: A Real Issue Hidden By Flimsy Arguments, Nathan B. Oman

Nathan B. Oman

No abstract provided.

Religion Anti-Discrimination And The Decline Of Labor Law, Nathan B. Oman

Nathan B. Oman

No abstract provided.

Reconsidering Contractual Consent: Why We Shouldn't Worry Too Much About Boilerplate And Other Puzzles, Nathan B. Oman

Nathan B. Oman

Our theoretical approaches to contract law have dramatically over-estimated the importance of voluntary consent. The central thesis of this article is that voluntary consent plays at best a secondary role in the normative justification of contract law. Rather, contract law should be seen as part of an evolutionary process of finding solutions to problems of social organization in markets. Like natural evolution, this process depends on variation and feedback. Unlike natural evolution, both the variation and the feedback mechanisms are products of human invention. On this theory, consent serves two roles in contract law. First, consent makes freedom of contract …

Preaching To The Court House And Judging In The Temple, Nathan B. Oman

Nathan B. Oman

No abstract provided.

Professors Alan J. Meese And Nathan B. Oman On Why Hobby Lobby And For-Profit Corporations Are Rfra Persons, Alan J. Meese, Nathan B. Oman

Nathan B. Oman

No abstract provided.

Promise And Private Law, Nathan B. Oman

Nathan B. Oman

This essay was part of a symposium on the thirtieth anniversary of the publication of Charles Fried's Contract as Promise and revisits Fried's theory in light of two developments in the private-law scholarship: the rise of corrective justice and civil-recourse theories. The structural features that motivate these theories-the bilateralism of damages and the private standing of plaintiffs-are both elements of the law of contracts that Contract as Promise sets out to explain. I begin with the issue of bilateralism. Remedies--in particular the defense of expectation damages--occupy much of Fried's attention in Contract as Promise, and he insists that this particular …

Washington Supreme Court Upholds State Anti-Spamming Law, Nathan B. Oman

Nathan B. Oman

No abstract provided.

Why There Is No Duty To Pay Damages: Powers, Duties, And Private Law, Nathan B. Oman

Nathan B. Oman

This Article was part of a symposium on the rise of civil recourse theory. It contributes to this debate by defending a simple but counterintuitive claim: There is no duty to pay damages in either tort or contract law. The absence of such a duty provides a reason for believing that civil recourse provides a better account of private law than does corrective justice. Corrective justice is committed to interpreting private law as creating duties for wrongdoers to compensate their victims. In contrast, civil recourse sees the law as empowering plaintiffs against defendants. My argument is that a careful analysis …

Whatever Your Thoughts On Marriage, Gay Divorce Is A Concern, Nathan B. Oman

Nathan B. Oman

No abstract provided.

Unity And Pluralism In Contract Law, Nathan B. Oman

Nathan B. Oman

No abstract provided.

Wagering On Religious Liberty, Nathan B. Oman

Nathan B. Oman

No abstract provided.

Thoughts On Religious Discrimination From The Cairo Geniza, Nathan B. Oman

Nathan B. Oman

No abstract provided.

The Story Of A Forgotten Battle, Nathan B. Oman

Nathan B. Oman

No abstract provided.

The Supreme Court's Theory Of Private Law, Nathan B. Oman, Jason M. Solomon

Nathan B. Oman

In this Article, we revisit the clash between private law and the First Amendment in the Supreme Court’s recent case, Snyder v. Phelps, using a private-law lens. We are scholars who write about private law as individual justice, a perspective that has been lost in recent years but is currently enjoying something of a revival.

Our argument is that the Supreme Court’s theory of private law has led it down a path that has distorted its doctrine in several areas, including the First Amendment–tort clash in Snyder. In areas that range from punitive damages to preemption, the Supreme Court has …

The Honor Of Private Law, Nathan B. Oman

Nathan B. Oman

While combativeness is central to how our culture both experiences and conceptualizes litigation, we generally notice it only as a regrettable cost. This Article offers a less squeamish vision, one that sees in the struggle of people suing one another a morally valuable activity: the vindication of insulted honor. This claim is offered as a normative defense of a civil recourse approach to private law. According to civil recourse theorists, tort and contract law should be seen as empowering plaintiffs to act against defendants, rather than as economically optimal incentives or as a means of enforcing duties of corrective justice. …

The Need For A Law Of Church And Market, Nathan B. Oman

Nathan B. Oman

This Essay uses Helfand and Richman’s fine article to raise the question of the law of church and market. In Part I, I argue that the question of religion’s proper relationship to the market is more than simply another aspect of the church-state debates. Rather, it is a topic deserving explicit reflection in its own right. In Part II, I argue that Helfand and Richman demonstrate the danger of creating the law of church and market by accident. Courts and legislators do this when they resolve questions religious commerce poses by applying legal theories developed without any thought for the …

The Hidden Cost Of Auto Bailouts, Nathan B. Oman

Nathan B. Oman

No abstract provided.

The Failure Of Economic Interpretations Of The Law Of Contact Damages, Nathan B. Oman

Nathan B. Oman

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 …

The (Hoped For) Shallowness Of Progressive Skepticism Towards Religious Freedom, Nathan B. Oman

Nathan B. Oman

No abstract provided.

The Empirical Irony Of The Conflict Between Antidiscrimination And Religious Freedom, Nathan B. Oman

Nathan B. Oman

No abstract provided.

Non-Compete Legislation Is Getting Worse With Latest Revisions, Nathan B. Oman

Nathan B. Oman

No abstract provided.

Nineteenth Century Corporate Law: A New Lens For Religious Freedom Scholars, Nathan B. Oman

Nathan B. Oman

No abstract provided.

Note To Trump: Know What You Call Muslims Who Reject Radical Islam? Refugees, Angela M. Banks, Nathan B. Oman

Nathan B. Oman

No abstract provided.

Natural Law And The Rhetoric Of Empire: Reynolds V. United States, Polygamy, And Imperialism, Nathan B. Oman

Nathan B. Oman

In 1879, the U.S. Supreme Court construed the Free Exercise Clause for the first time, holding in Reynolds v. United States that Congress could punish Mormon polygamy. Historians have interpreted Reynolds, and the anti-polygamy legislation and litigation that it midwifed, as an extension of Reconstruction into the American West. This Article offers a new historical interpretation, one that places the birth of Free Exercise jurisprudence in Reynolds within an international context of Great Power imperialism and American international expansion at the end of the nineteenth century. It does this by recovering the lost theory of religious freedom that the Mormons …

Jurisprudence And The Problem Of Church Doctrine, Nathan B. Oman

Nathan B. Oman

No abstract provided.

Markets, Religion, And The Limits Of Privacy, Nathan B. Oman

Nathan B. Oman

No abstract provided.