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Full-Text Articles in Law

Credible Coercion, Oren Bar-Gill, Omri Ben-Shahar Jan 2005

Credible Coercion, Oren Bar-Gill, Omri Ben-Shahar

Articles

The ideal of individual freedom and autonomy requires that society provide relief against coercion. In the law, this requirement is often translated into rules that operate "postcoercion" to undo the legal consequences of acts and promises extracted under duress. This Article argues that these ex post antiduress measures, rather than helping the coerced party, might in fact hurt her. When coercion is credible-when a credible threat to inflict an even worse outcome underlies the surrender of the coerced party-ex post relief will only induce the strong party to execute the threatened outcome ex ante, without offering the choice to surrender, …


Monstrous Impersonation: A Critique Of Consent-Based Justifications For Hard Paternalism, Thaddeus Mason Pope Jan 2005

Monstrous Impersonation: A Critique Of Consent-Based Justifications For Hard Paternalism, Thaddeus Mason Pope

Faculty Scholarship

Restricting a person's substantially voluntary, self-regarding conduct primarily for the sake of that person is hard paternalism. Particularly in the public health context, scholars, legislators, and judges are devoting increasing attention to discussing the conditions and circumstances under which hard paternalism is justified. One popular type of argument for the justifiability of hard paternalism takes its normative warrant from the consent of the restricted person.

In this Article, I argue that scholars and policymakers should abandon consent-based arguments for the justifiability of hard paternalism. Such arguments are torn between incoherence and lacking moral force. Very few consent-based arguments successfully resolve …


The Right Of Publicity And Autonomous Self-Definition, Mark P. Mckenna Jan 2005

The Right Of Publicity And Autonomous Self-Definition, Mark P. Mckenna

Journal Articles

Legal protection against unauthorized commercial uses of an individual's identity has grown significantly over the last fifty years as it has relentlessly pursued economic value. It was forced to focus on value because a false distinction between the harms suffered by private citizens and celebrities seemingly left celebrities without a privacy claim for commercial use of their identities. But the normative case for awarding individuals the economic value of their identity is weak, since celebrities do not need additional incentive to invest in either their native skill or in developing a persona. Still, while the prevailing justification is inadequate, as …


Is Public Health Paternalism Really Never Justified? A Response To Joel Feinberg, Thaddeus Mason Pope Jan 2005

Is Public Health Paternalism Really Never Justified? A Response To Joel Feinberg, Thaddeus Mason Pope

Faculty Scholarship

n the preeminent scholarly legal treatise on paternalism, The Moral Limits of the Criminal Law: Harm to Self, Joel Feinberg argues that hard paternalism is never justified because it is superfluous; all reasonable restriction of self-regarding conduct can be justified on (more palatable) soft paternalistic grounds.

In this article, I argue that Feinberg's strategy seems to work only because he "stretches" soft paternalism to justify liberty limitation that is properly described as hard paternalism. I expose Feinberg's strained appeals, and argue for honesty and transparency regarding the bases for paternalistic liberty limitation. If the rationale for public health restrictions on …


Party Autonomy In Choice Of Commercial Law: The Failure Of Revised U.C.C. § 1-301 And A Proposal For Broader Reform, Jack M. Graves Jan 2005

Party Autonomy In Choice Of Commercial Law: The Failure Of Revised U.C.C. § 1-301 And A Proposal For Broader Reform, Jack M. Graves

Scholarly Works

No abstract provided.


Book Review: "Jewish Biomedical Law: Legal And Extra-Legal Dimensions", Stacey A. Tovino Jan 2005

Book Review: "Jewish Biomedical Law: Legal And Extra-Legal Dimensions", Stacey A. Tovino

Scholarly Works

Three extra-legal themes—the influence of morality upon Jewish law (halakhah), the growing awareness and implementation of the value of patient autonomy, and the role of scientific progress in the shaping of halakhic decisions—distinguish Daniel Sinclair’s work from other sin the field of Jewish biomedical law. Students and lawyers new to Jewish biomedical law may struggle with Sinclair’s decision to reserve until the final chapter his theories regarding how biomedical halakhah works. However, advanced students and scholars in the field will appreciate the opportunity to understand Sinclair’s three extra-legal themes in context and his decision to root his final …