Inequality, as well as the scope of the duty of justice to reduce it, has always been a central concern of political justice. Income taxation has been seen as a key tool for redistribution and the state was the arena for discussions of justice. Globalization and the tax competition it fosters among states change the context for the discussion of distributive justice. Given the state’s fading coercive power in taxation and the decreasing power of its citizenry to co-author its collective (...) will due to global competition, we can no longer assume that justice can be realized within the parameters of the state. International tax policy in an effort to retain justice often opts for cooperation as a vehicle to support distributive justice. But cooperation among states is more than a way for them to promote their aims through bargaining. Rather, it is a way for states to regain legitimacy by sustaining their very ability to ensure the collective action of their citizens and to treat them with equal respect and concern. The traditional discussion in international taxation seems to endorse a statist position — implicitly assuming that when states bargain for a multilateral deal, justice is completely mediated by the agreement of the states. In contrast, this Article argues that such a multilateral regime intended to provide the state with fundamental legitimacy requires independent justification. Contrary to the conventional statist position, I maintain that cooperating states have a duty to ensure that the constituents of all cooperating states are not treated unjustly because of the agreement. I argue that not only cosmopolitanism but political justice too requires that a justifiable cooperative regime must improve the welfare of the least well-off citizens in all cooperating states. I explain that cooperation alone is no guarantee of improved welfare and that certain transfer payments between rich and poor countries might be required to ensure this. (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)

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)

Cytogenetic research has had a major impact on the field of reproductive medicine, providing an insight into the frequency of chromosomal abnormalities that occur during gametogenesis, embryonic development and pregnancy. In humans, aneuploidy has been found to be relatively common during fetal life, necessitating prenatal screening of high‐risk pregnancies. Aneuploidy rates are higher still during the preimplantation stage of development. An increasing number of IVF laboratories have attempted to improve pregnancy rates by using preimplantation genetic diagnosis (PGD) to ensure that (...) the embryos transferred to the mother are chromosomally normal. This paper reviews some of the techniques that are key to the detection of aneuploidy in reproductive samples including comparative genomic hybridization (CGH). CGH has provided an unparalleled insight into the nature of chromosome imbalance in human embryos and polar bodies. The clinical application of CGH for the purposes of PGD and the future extensions of the methodology, including DNA microarrays, are discussed. BioEssays 25:289–300, 2003. © 2003 Wiley Periodicals, Inc. (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)

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)

This article advances a censure-based case against sentences of life imprisonment without the possibility of parole. Our argument justifies a retributive “second look” assessment of long-term priso...

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

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.

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)

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)

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

Retributivism is one of the most prevalent theories in contemporary penal theory. However, despite its popularity it is frequently argued that too little attention has been paid to the implications of retributivism for prison management and prison life, including prison visits and furlough. More so, it has been questioned both whether the various forms of retributivism found in the philosophical literature on criminal punishment have anything to say about what prison life ought to be like and whether they are able (...) to criticize deeply contested rules and practices, such as those that deny inmates contact with family-members for the sake of prison discipline. In this paper, we argue that prison visits and furlough have a crucial role in a prison system based on retributivist principles. In particular, we argue that the communicative theory of punishment has important theoretical resources for proving a strong and compelling rationale for both furlough and visitation on retributivist grounds. Besides exploring this rationale, we also discuss the practical implications of this view for the penal policy. (shrink)

We present a classical hydrodynamic analog of free relativistic quantum particles inspired by de Broglie’s pilot wave theory and recent developments in hydrodynamic quantum analogs. The proposed model couples a periodically forced Klein–Gordon equation with a nonrelativistic particle dynamics equation. The coupled equations may represent both quantum particles and classical particles driven by the gradients of locally excited Faraday waves. Exact stationary solutions of the coupled system reveal a highly nonlinear mechanism responsible for the self-propulsion of free particles, leading to (...) the onset of unsteady motion. Although the model is essentially nonrelativistic, a stabilizing mechanism for any particle traveling close to the wave signaling speed emerges through the coupling with the wavefield. Consequently, inline particle oscillations comparable to de Broglie’s wavelength are realized through this fully-classical model, suggesting a new classical interpretation for the motion of relativistic quantum particles. (shrink)

The relationship between the purposes of sentencing and imprisonment can be variously conceptualized. The paper theorizes and contrasts two models of sentencing and prison relations—continuity and separation. The continuity model assumes continuity between sentencing and prison regime. Under this model, all sentencing purposes may impact prison regime. The separation model distinguishes between the purposes of sentencing and of imprisonment. Under the separation model, the retributive element of imprisonment is completely fulfilled by depriving the prisoner of liberty. Retributive considerations can affect (...) only the duration of the sentence, while prison regime is determined solely according to rehabilitation/risk and prison security considerations. The paper problematizes the separation model as it suffers from two difficulties: (a) the idea that the retributive element of imprisonment is fully fulfilled by depriving the prisoner’s liberty undermines the “hard treatment” element of the retributive punishment. Relatedly, since no prison regime can deprive a person solely of liberty no custodial sentence can be justified; (b) given the inability to isolate the denial of liberty as the only deprivation of imprisonment, the separation model also encourages judges to underestimate and feel less responsible for the full meaning of their decision to imprison. Finally, the paper will argue that liberal prison conditions may (and should) be achieved even when seeing retribution as relevant for prison life and will offer possible ways to do so. (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 uses comparative analysis of childcare deductions in the U.S., Canada and Israel in order to expose the non-technical nature of the distinction between business and personal deductions. The comparative analysis reveals significant differences in the ways courts in the three jurisdictions have interpreted the distinction in the context of childcare expenses. Courts in these countries have dealt with the question in different eras and faced different legislative environments. The differences in time and legislative background not only help explain (...) some of the differences among the courts’ decisions in the three jurisdictions, but also expose the normative foundations of the seemingly technical distinction, demonstrating that the issue of childcare deductions in fact raises a question of baseline-setting. In allowing or disallowing the deduction of childcare, courts actually determine what counts — and more importantly what should count — for income tax purposes in general and deductions in particular. By exposing the baseline issues underlying questions of deduction, the Article demonstrates why it is preferable to explicitly use normative considerations in lieu of the so-called technical distinction between business and personal deductions. The comparative analysis further raises an institutional consideration; as shown, precisely because this is a baseline issue, legislatures, who enjoy a larger doctrinal tool box than courts, can offer greater flexibility as required when a variety of normative considerations should be taken into account. (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)

Scholars depict punishment as a moral dialogue between the community and the offender, which addresses both the offender’s crime and character. However, how the penal message evolves vis a vis that crime and character as it passes through the different stages of the criminal process has remained under-theorized. This article, building on communicative theory, explores the interrelation between crime and character along the penal process, from sentencing, through prison, to parole release. We argue that in the penal dialogue the relationship (...) between crime and character evolves in a dynamic way through three phases: separateness (sentencing), fusion (prison), and re-distinction (parole) of crime and character. The proposed analysis develops the communicative meaning of the penal process, provides a normative account of the work of punishment administration authorities, and explores applications of our proposed normative analysis for the administration of the punishment. (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)

State agents’ misconduct (SAM), such as the violations carried out by the police or prosecution, may harm an offender’s rights during the criminal process in various ways. What, if anything, can retributivism, as an offense-focused theory that looks to the past, offer in response to SAM? The goal of this essay is to advance a retribution-based framework for responding to SAM within the criminal process. Two retribution-based arguments are provided. First, a retribution-based response to SAM aims to protect the legitimacy (...) of the criminal process. Such an argument is based on how the crime and punishment connect to the moral standing of the state and that connection’s meaning for the legitimacy of the trial (legitimacy-based argument). Second, a retribution-based response to SAM aims to consider the offender’s side of the penal dialogue and promote a more accurate calibration of the penal suffering (compensation-based argument). Based on these arguments, the essay theorizes the legal response for SAM in US and non-US traditions through the retributive lens. The essay concludes with a call for expanding the multiple roles for retributive logic to include the actions of law-enforcement actors and addresses what that expansion means for the justice of the criminal process. (shrink)

This paper introduces coupled clustering—a novel computational framework for detecting corresponding themes in unstructured data. Gaining its inspiration from the structure mapping theory, our framework utilizes unsupervised statistical learning tools for automatic construction of aligned representations reflecting the context of the particular mapping being made. The coupled clustering algorithm is demonstrated and evaluated through detecting conceptual correspondences in textual corpora. In its current phase, the method is primarily oriented towards context-dependent feature-based similarity. However, it is preliminary demonstrated how it could (...) be utilized for identification of relational commonalities, as well. (shrink)

This article seeks to reveal, conceptualize, and analyze a trend in the development of the retributive theory of punishment since the beginning of the 21st century. We term this trend “retributarianism.” It is reflected in the emergence of retributive approaches that through expanding the concepts of censure and culpability extend the relevant time-frame for assessing the deserved punishment beyond the sentencing moment. These retributarian approaches are characterized by the individualization of retributivism. On one hand, retributarianism shares with classic retributivism the (...) rhetoric of justice, a focus on the moral evaluation of the severity of the offense, and the primary importance ascribed to maintaining proportionality. On the other hand, it shares with utilitarianism the possibility of taking into account, in addition to the severity of the offense, the offender’s personal circumstances, with a future-oriented perspective that also considers developments subsequent to the commission of the offense. This article analyzes the emergence of retributarianism, suggests possible explanations for its development, and assesses its possible implications for penal theory and policy. (shrink)

In Plato’s Theaetetus , Socrates is portrayed as a midwife to the intellect, a metaphor for his task as a dialectician as he seeks to help give birth to wisdom. Thus it is that the author refers to Plato as the midwife’s apprentice. This volume represents an attempt to provide a more manageable account of the author’s two volume magnum opus, An Examination of Plato’s Doctrines . An accessible and lucid introduction to Plato’s ideas is provided which nonetheless challenges traditional (...) interpretations. In particular the author is concerned to offer an interpretation of the significance of what Plato said. The chapters are arranged by topic, for ease of comprehension. (shrink)