Law Commons^™

Constitutional Scepticism, Robin West

Georgetown Law Faculty Publications and Other Works

Interpretive constitutional debate over the last few decades has centered on two apparently linked questions: whether the Constitution can be given a determinate meaning, and whether the institution of judicial review can be justified within the basic assumptions of liberalism. Two groups of scholars have generated answers to these questions. The "constitutional faithful" argue that meaning can indeed be determinately affixed to constitutional clauses, by reference to the plain meaning of the document, the original intent of the drafters, evolving political and moral norms of the community, or the best political or moral philosophical theory available and that, because of …

Conflicting Visions: A Critique Of Ian Macneil’S Relational Theory Of Contract, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Perhaps the leading contemporary critic of placing consent at the center of contract law has been Ian Macneil. In his book The New Social Contract as well as in a series of complex and richly textured articles spanning nearly two decades, Macneil has eloquently presented and defended his now well-known relational theory of contract. It is a tribute to the important core of previously neglected truth in Macneil's theory that, for all its complexity, the theory can be summarized succinctly.

Macneil presents nothing less than a "holistic" "social theory" of human exchange--with particular emphasis on the human activity of "projecting …

The Sound Of Silence: Default Rules And Contractual Consent, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In this article, the author challenges the received wisdom of "gap-filling in the absence of consent" by showing how the concept of default rules bolsters the theoretical importance of consent. He accomplishes this by expanding and refining his analysis of a "consent theory of contract." The author proposes that the concept of default rules reveals consent to be operating at two distinct levels of contract theory. First, the presence of consent to be legally bound is essential to justify the legal enforcement of any default rules. Second, nested within this overall consent to be legally bound, consent also operates to …

Some Problems With Contract As Promise, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

The promise theory views the origin of contract in the making of a promise. This means that it views the creation of contracts as arising, in an important part, from the voluntary acts of promisors rather than from third parties like the State. In this regard, the theory facilitates the classical liberal value of freedom to contract. The promise theory also supports the notion that contracts should be interpreted according to the terms of the promise rather than by imposing terms on the parties. In this regard, the theory facilitates the classical liberal value of freedom from contract. These strengths …

Reconstructing Liberty, Robin West

Georgetown Law Faculty Publications and Other Works

It is commonly and rightly understood in this country that our constitutional system ensures, or seeks to ensure, that individuals are accorded the greatest degree of personal, political, social, and economic liberty possible, consistent with a like amount of liberty given to others, the duty and right of the community to establish the conditions for a moral and secure collective life, and the responsibility of the state to provide for the common defense of the community against outside aggression. Our distinctive cultural and constitutional commitment to individual liberty places very real restraints on what our elected representatives can do, even …

The "Gag Rule" Revisited: Physicians As Abortion Gatekeepers, Maxwell Gregg Bloche

Georgetown Law Faculty Publications and Other Works

To the surprise of many and the dismay of some, the U.S. Supreme Court took it upon itself last term to proclaim a national compromise on the question of abortion. The Court's announced truce, an elaboration on Justice O'Connor's "undue burden" idea, is pragmatic in design but unlikely to prove stable in practice. The three justices who spoke for the Court disparaged Roe with reluctant praise, then upheld its outer shell on the ground that social expectations and the need to sustain the appearance of the rule of law made it impolitic to do otherwise. This awkward doctrinal invention seems …

Treaty-Based Rights And Remedies Of Individuals, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

Treaties are frequently described as contracts between nations. As instruments of international law, they establish obligations with which international law requires the parties to comply. In the United States, treaties also have the status of law in the domestic legal system. The Supremacy Clause declares treaties to be the "supreme Law of the Land" and instructs the courts to give them effect. The status of treaties as law in two distinct legal orders has given rise to unusual conceptual problems. In recent years, it has produced confusion among the courts regarding the enforceability of treaties in the courts by individuals. …

Rational Bargaining Theory And Contract: Default Rules, Hypothetical Consent, The Duty To Disclose, And Fraud, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

The author begins by responding to Coleman's rational choice approach to choosing default rules. In part I, he applies the expanded analysis of contractual consent and default rules that he had recently presented elsewhere to explain how rational bargaining, hypothetical consent, and actual consent figure in the determination of contractual default rules. Whereas Coleman advocates the centrality of rational bargaining analysis to this determination, the author explains why rational bargaining theory's role must be subsidiary to that of consent.

The author then turns his attention to Coleman's appraisal of contracting parties' duty to disclose information concerning the resources that are …