ABSTRACTThis article develops a theory of just contractual relationships for a liberal society. As a liberal theory, our account is premised on liberalism's canonical commitments to self-determination and substantive equality. As a theory of contract law, it focuses on the parties’ interpersonal interactions rather than on the justice of the social order as a whole.Normatively, the article claims that the rules governing cases where one party experiences harsh circumstances or vulnerability during the bargaining process or operates under significant informational disadvantage (...) must be guided by the commitment to relational justice, that is, to reciprocal respect for self-determination and substantive equality. Jurisprudentially, the article studies the systemic difficulties hindering the translation of these normative prescriptions into legal language and analyzes how they affect the form assumed by the law of precontractual justice and its institutional pedigree. (shrink)

In ‘The Choice Theory of Contracts’, we advance a claim about the centrality of autonomy to contract. Since publishing Choice Theory, we have engaged dozens of reviews and responses; here, we reply to Robert Stevens, Arthur Ripstein, and Brian Bix. All this rigorous debate confirms for us one core point: contract’s ultimate value must be autonomy, properly understood and refined. Autonomy is the telos of contract and its grounding principle. In Choice Theory, we stressed the proactive facilitation component of autonomy, (...) in particular, the state’s obligation regarding contract types. Here, we highlight two additional, necessary implications of autonomy for contract: regard for future selves and relational justice. These three aspects of autonomy shape the range, limit, and floor, respectively, for the legitimate use of contract. They provide a principled and constrained path for law reform. (shrink)

In “The Choice Theory of Contracts,” we explain contractual freedom and celebrate the plurality of contract types. Here, we reply to critics by refining choice theory and showing how it fits and shapes what we term the “Contract Canon”. I. Freedom. (1) Charles Fried challenges our account of Kantian autonomy, but his views, we show, largely converge with choice theory. (2) Nathan Oman argues for a commerce-enhancing account of autonomy. We counter that he arbitrarily slights noncommercial spheres central to human (...) interaction. (3) Yitzhak Benbaji suggests that choice theory’s commitment to autonomy is overly perfectionist. Happily, in response to Benbaji, we can cite with approval Charles Fried’s point that contract types are “enabling our liberties.” II. Choice. (4) Aditi Bagchi criticizes our inattention to impediments to choice. We show how choice theory’s commitments to both multiplicity and relational justice ameliorate these impediments. (5) Gregory Klass explores parol evidence to highlight the mechanisms of choice. We substantially concur with his position, and show how such mechanisms can ensure voluntariness, an essential element of choice. (6) Oren Bar-Gill and Clayton Gillette question the institutional capacity of existing legal actors to implement choice theory. Working from the example of cohabitation, we offer a somewhat more optimistic view. III. Contracts. (7) Peter Benson contends our focus on the rational slights the reasonable. Although we did not use this Rawlsian vocabulary, choice theory complies with its strictures — more so than transfer theory. (8) Daniel Markovits and Alan Schwartz claim provocatively that contract theory must: capitulate before pluralism (as they endorse); leverage it; or fall victim to a so-called “embracing” approach (their charge against us). We reject the charge that choice theory is foundationally value-pluralist. Instead, we cabin pluralism and put it to work. (9) The Contract Canon starts on the next big step for choice theory by explaining existing doctrine (rebutting Benson on lack of fit) and helping adjudicate contract practice (countering Markovits and Schwartz on the vices of our pluralism). Each Article in this Issue advances the field; each prompts us to refine choice theory — all steps, we hope, toward a more just and justified law of contract. (shrink)

This book demonstrates how legal realism offers important and unique jurisprudential insights that are not just a part of legal history, but are also relevant and useful for a contemporary understanding of legal theory.

Volume 10, Issue 3, September 2019, Page 422-433.

For private property to be legitimately recognized as a universal human right, its meaning should pass the test of self-imposability by an end. In this Essay, we argue, negatively, that the prevailing understanding of private property cannot plausibly meet this demanding standard; and develop, affirmatively, a liberal conception which has a much better prospect of meeting property’s justificatory challenge. Private property, on our account, is an empowering device, which is crucial both to people’s personal autonomy and to their relational equality. (...) The liberal conception of the human right to property has both vertical and horizontal significance — it implies respect from both the public authority and other individuals — which means that it is thoroughly political but not necessarily statist. Our account generates important implications, both domestic and transnational. Domestically, it implies that whereas some property rights should be subject to strong constitutional protection, state law should facilitate other types of private and non-private property institutions, and these property institutions may well be subject to non-owners’ claims to access and, more broadly, to being treated respectfully. Furthermore, our conception of the human right to property requires that everyone have the unusual authority typical of full-blown private ownership. Transnationally, our analysis highlights a freestanding dimension of relational justice, which is relevant across borders even given that our distributive obligations are statist. This injunction of relational justice in transnational interactions brings into question the adequacy of the current state of the law, according to which these interactions are mainly governed by choice-of-law rules that conceptualize them as wholly subsumed under the capacities of the parties as citizens of their respective polities. (shrink)

Property enhances autonomy for most people, but not for all. Because it both empowers and disables, property requires constant vigilance. A Liberal Theory of Property addresses key questions: how can property be justified? What core values should property law advance, and how do those values interrelate? How is a liberal state obligated to act when shaping property law? In a liberal polity, the primary commitment to individual autonomy dominates the justification of property, founding it on three pillars: carefully delineated private (...) authority, structural pluralism, and relational justice. A genuinely liberal property law meets the legitimacy challenge confronting property by expanding people's opportunities for individual and collective self-determination while carefully restricting their options of interpersonal domination. The book shows how the three pillars of liberal property account for core features of existing property systems, provide a normative vocabulary for evaluating central doctrines, and offer directions for urgent reforms. (shrink)

This article argues that contemporary accounts of justice miss a relational dimension of justice, which focuses on the terms private individuals’ interactions must meet for them to constitute relationships among equal, self-determining persons. The article develops the argument that the justice requirement to respect others as substantively free and equal individuals can sometimes be adequately discharged only if the relevant private persons are held responsible for its realization. It further elaborates the normative framework of relational justice to explain the generic (...) structure, content, and scope of such a requirement. (shrink)

This article focuses on cases of restitution within contract, investigating the normative desirability of enabling a promise to pursue the profits derived by the promisor through a breach of contract as an alternative pecuniary remedy of wide applicability. Situated at the frontier of both contractual and restitutionary liability, the question of whether restitutionary damages for breach of contract should be available has received a considerable amount of attention. This article makes a critical examination of the normative groundings that have been (...) proposed for and against awarding this pecuniary remedy. This article arrives at two significant conclusions. The first is deconstructive. Parts I and II critique two conventional arguments often raised in the debate over restitutionary damages. These Parts raise doubts as to the ability of these arguments to substantiate the doctrinal conclusions they purport to support. I claim that both promise-keeping and unjust enrichment are neutral between rules offering restitutionary damages and denying such awards. The significance of the results of this analysis extends beyond the specific questions at hand, since these arguments dominate many of the debates surrounding private law theory. The second conclusion reached is reconstructive. Parts III, IV and V present three normative considerations that are more helpful: protection of proprietary rights, enhancement of efficiency, and good faith. Here an attempt is made to reconceptualize the conventional arguments for the derivation of legal rules from these normative prescriptions. From this reconceptualization, we realize that in order to settle the debate over restitutionary damages for breach of contract, a choice must be made between the instrumental conception of contract and its more cooperative alternative. Thus, it emerges that here, too, just as in the case of many other legal issues, the persistent need to choose between two conflicting social visions cannot be avoided. (shrink)

Volume 13, Issue 4, December 2022, Page 668-688.

Modern contract law accords considerable significance to the basic assumptions on which a contract is made. It thus takes to heart a failure of a belief whose truthfulness is taken for granted by both parties. Where the failure results from the parties’ mistake at the time of formation, “the contract is voidable by the adversely affected party,” if that mistake “has a material effect on the agreed exchange of performances” and unless that party “bears the risk of the mistake.”1 Where, (...) in turn, the failure of such a basic assumption results from the parties’ erroneous beliefs about future states of the world, a party’s duty to render performance may be discharged if they are not responsible for the supervening impracticability or frustration and “unless the language or the circumstances indicate the contrary.”2. (shrink)

Contract and employment law have grown apart. Long ago, each side gave up on the other. In this Article, we reunite them to the betterment of both. In brief, we demonstrate the emancipatory potential of contract for the law of work. Today, the dominant contract theories assume a widget transaction between substantively equal parties. If this were an accurate description of what contract is, then contract law would be right to expel workers. Worker protections would indeed be better regulated by—and (...) relegated to—employment and labor law. But contract law is not what contract theorists claim. Neither is contract law what the dominant employment theorists fear—a domain that necessarily misses the constitutive place of work in people’s life-plans and overlooks the systemic vulnerability of workers to their employers. Contract, we contend, is not work law’s canonical “other.” Rightly understood, contract is an autonomy-enhancing device, one founded on the fundamental liberal commitment of reciprocal respect for self-determination. From this “choice theory” perspective, the presumed opposition between employment and contract law dissolves. We show that many employment law doctrines are not external to contract, but are instead entailed in liberal contract itself. Grounding worker protections in contract theory has two salutary effects. First, it offers workers more secure protection than that afforded by their reliance on momentary public-law compromises. Second, it reveals contract’s emancipatory potential for all of us—not just as workers, but also as widget buyers. Contract can empower, and employment can show the way. (shrink)

Property concerns conflicts — both conflicts between individuals and conflicts of interest. Conflicts between individuals have long been the paradigmatic property focus. According to this view, property debates circle around issues of autonomy and productive competition. But this is an impoverished view. In this Article, we shift attention to conflicts of interest. By helping people manage conflicts of interest, a well-governed property system balances interdependence with autonomy and productive cooperation with productive competition. We identify three mechanisms woven throughout property law (...) that help manage conflicts of interest: internalization of externalities; democratization of management; and de-escalation of transactions. We show that property law predictably selects among these mechanisms depending on the ratio of economic to social benefits that people seek from a group resource. When economic concerns predominate, property law typically uses contribution-based allocations of rights and responsibilities mediated by formal, foreground procedures, while at the social end of the spectrum we tend to see more egalitarian substantive rules operating as an informal, background safety net. (shrink)