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Full-Text Articles in Law

The Correspondence Of Contract And Promise, Jody S. Kraus Jan 2009

The Correspondence Of Contract And Promise, Jody S. Kraus

Faculty Scholarship

Correspondence accounts of the relationship between contract and promise hold either that contract law is justified to the extent it enforces a corresponding moral responsibility for a promise or unjustified to the extent it undermines promissory morality by refusing to enforce a corresponding moral responsibility for a promise. In this Article, I claim that contract scholars have mistakenly presumed that they can assess the correspondence between contract and promise without first providing a theory of self-imposed moral responsibility that explains and justifies the promise principle. I argue that any plausible theory of self-imposed moral responsibility is inconsistent with a strong ...


Personal Sovereignty And Normative Power Skepticism, Jody S. Kraus Jan 2009

Personal Sovereignty And Normative Power Skepticism, Jody S. Kraus

Faculty Scholarship

In "The Correspondence of Contract and Promise," I claim that contract scholars have mistakenly presumed that they can assess the correspondence between contract and promise without first providing a theory of self-imposed moral responsibility that explains and justifies the promise principle. To illustrate the dependence of correspondence accounts of contract law on a theory of self-imposed moral responsibility, I demonstrate how a "personal sovereignty" account of individual autonomy explains how and why, contrary to existing correspondence theories, promissory responsibility corresponds to the rights and duties recognized by contract. Personal sovereignty recognizes the fundamental right of individuals not only to choose ...


Randomization In Criminal Justice: A Criminal Law Conversation, Bernard E. Harcourt, Alon Harel, Ken Levy, Michael M. O'Hear, Alice Ristroph Jan 2009

Randomization In Criminal Justice: A Criminal Law Conversation, Bernard E. Harcourt, Alon Harel, Ken Levy, Michael M. O'Hear, Alice Ristroph

Faculty Scholarship

In this Criminal Law Conversation (Robinson, Ferzan & Garvey, eds., Oxford 2009), the authors debate whether there is a role for randomization in the penal sphere - in the criminal law, in policing, and in punishment theory. In his Tanner lectures back in 1987, Jon Elster had argued that there was no role for chance in the criminal law: “I do not think there are any arguments for incorporating lotteries in present-day criminal law,” Elster declared. Bernard Harcourt takes a very different position and embraces chance in the penal sphere, arguing that randomization is often the only way to avoid the pitfalls ...


Responsibility And The Negligence Standard, Joseph Raz Jan 2009

Responsibility And The Negligence Standard, Joseph Raz

Faculty Scholarship

The paper has dual aim: to analyse the structure of negligence, and to use it to offer an explanation of responsibility (for actions, omissions, consequences) in terms of the relations which must exist between the action (omission, etc.) and the agents powers of rational agency if the agent is responsible for the action. The discussion involves reflections on the relations between the law and the morality of negligence, the difference between negligence and strict liability, the role of excuses and the grounds of duties to pay damages.


Agency And Luck, Joseph Raz Jan 2009

Agency And Luck, Joseph Raz

Faculty Scholarship

Advancing an account of responsibility which is based on the functioning of our rational capacities, the paper revisits some central aspects of the moral luck puzzle. It proposes a new variant of Williams’ agent-regret, but concludes that its scope does not coincide with cases of moral luck. It then distinguishes different ways in which the factors beyond our control feature in our engagement with the world which show how the guidance principle (we are responsible for actions guided by our rational powers) recognises a narrower range of situations of moral luck than is often supposed, allowing to distinguish between responsibility ...


Role Differentiation And Lawyers’ Ethics: A Critique Of Some Academic Perspectives, William H. Simon Jan 2009

Role Differentiation And Lawyers’ Ethics: A Critique Of Some Academic Perspectives, William H. Simon

Faculty Scholarship

Much recent academic discussion exaggerates the distance between plausible legal ethics and ordinary morality. This essay criticizes three prominent strands of discussion: one drawing on the moral philosophy of personal virtue, one drawing on legal philosophy, and a third drawing on utilitarianism of the law-and-economics variety. The discussion uses as a central reference point the “Mistake-of-Law” scenario in which a lawyer must decide whether to rescue an opposing party from the unjust consequences of his own lawyer’s error. I argue that academic efforts to shore up the professional inclination against rescue are not plausible. I conclude by recommending an ...