Carrying the Choice Theory of Contracts Further: Transfers, Welfare, and the Size of the Community

2019 ◽  
Vol 15 (3) ◽  
pp. 297-334
Author(s):  
Fabrizio Esposito
Keyword(s):  
Legal System ◽  
Choice Theory ◽  
Contract Law ◽  
Liberal Theory ◽  
Consumer Sovereignty ◽  
Economic Theories ◽  
Economic Concept ◽  
Contractual Relationships ◽  
Key Concepts ◽  
Scholarly Attention

Abstract The Choice Theory of Contracts is an ambitious, concise, and largely successful contribution to contract theory. Choice Theory is a liberal theory of contract law, grounded in a rich notion of autonomy, which stresses the obligation of the legal system to enhance our autonomy by ensuring the multiplicity of contractual types within the spheres of family, employment, home, and commerce.This article mitigates three shortcomings in The Choice Theory of Contracts and tries to carry Choice Theory further. A first shortcoming of the book is that the critique of transfer theory fails to acknowledge its analytical value. Second, in Part II of the book, Dagan and Heller overlap two issues: what the goods of contract are, and the compatibility of Choice Theory with the key concepts used by mainstream contract theories. Finally, Dagan and Heller do not fully acknowledge that the value of our autonomy is related to our ability to choose well. These revisions are useful to channelling scholarly attention on the implementation of Choice Theory and to sharpening the conceptual tools needed to do so.To show the potential of Choice Theory, this article carries it further. First, the economic concept of consumer sovereignty extends the programme of autonomy-grounded economic theories of contracts. Second, the size of the communities in which contractual relationships are created helps understand how various doctrines and even entire branches of the law foster the autonomy-enhancing capacity of contracts.The article concludes with a series of suggestions for carrying Choice Theory even further.

Adversarial Medical and Scientific Testimony and Lay Jurors: A Proposal for Medical Malpractice Reform

1995 ◽  
Vol 21 (2-3) ◽  
pp. 281-300
Author(s):  
Jody Weisberg Menon
Keyword(s):  
General Theory ◽  
Legal System ◽  
Medical Malpractice ◽  
Common Knowledge ◽  
Common Law ◽  
Expert Witnesses ◽  
Malpractice Reform ◽  
The Right ◽  
Scholarly Attention ◽  
Scientific Testimony

Pleas for reform of the legal system are common. One area of the legal system which has drawn considerable scholarly attention is the jury system. Courts often employ juries as fact-finders in civil cases according to the Seventh Amendment of the Constitution: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved … .” The general theory behind the use of juries is that they are the most capable fact-finders and the bestsuited tribunal for arriving at the most accurate and just outcomes. This idea, however, has been under attack, particularly by those who claim that cases involving certain difficult issues or types of evidence are an inappropriate province for lay jurors who typically have no special background or experience from which to make informed, fair decisions.The legal system uses expert witnesses to assist triers of fact in understanding issues which are beyond their common knowledge or difficult to comprehend.

Autonomy in Transactions

2021 ◽  
Vol 17 (2) ◽  
pp. 170-183
Author(s):  
Thomas Gutmann
Keyword(s):  
Division Of Labor ◽  
Political Liberalism ◽  
Mutual Recognition ◽  
Contract Law ◽  
Liberal Theory ◽  
Public Justification ◽  
Individual Rights ◽  
Principles Of Justice ◽  
Normative Foundations

Abstract The article presents a ‘critique from within’ of Peter Benson’s book ‘Justice in Transactions’, while sharing its premise that a theory of contract has to be liberal one. It identifies three problems with Benson’s answer to the question of how the relation between freedom and equality in contract law should be understood. It criticizes Benson’s Hegelian metaphysics and claims that a principle of mutual recognition and respect between juridical persons does not require that contracts only allow the alienation and appropriation of different things of the quantitatively same value. It demonstrates that Rawls’s idea of a ‘division of labor’ within principles of justice is more plausible than Benson’s reformulated account, which loses sight of the premise that a liberal theory of contract must locate the normative foundations of ‘contract’ in individual rights, and, in addition, is at odds with Rawls’s project in ‘Political Liberalism’ and its concept of public justification.

Equity and certainty in contract law

Acta Juridica ◽  
2021 ◽  
Vol 2021 ◽  
pp. 141-176
Author(s):  
F Brand
Keyword(s):  
Supreme Court ◽  
Contract Law ◽  
Constitutional Court ◽  
High Court ◽  
Contractual Relationships ◽  
The Supreme Court ◽  
The Subject ◽  
Court Of Appeal ◽  
Do So

The role of abstract values such as equity and fairness in our law of contract has been the subject of controversy for a number of years. In 2002 the Supreme Court of Appeal took the position that these values do not constitute self-standing grounds for interfering with contractual relationships. Despite this being consistently maintained by the SCA in a number of cases, some High Court judges deviated from this position on the basis that they were permitted to do so by some minority judgments and obiter dicta in the Constitutional Court. The uncertainty thus created has fortunately now been removed by the judgment of the Constitutional Court in Beadica v The Trustees for the Time being of the Oregon Trust.

Contract

2005 ◽  
Author(s):  
James Gordley
Keyword(s):  
Twentieth Century ◽  
Legal System ◽  
Common Law ◽  
Contract Law ◽  
Legal Method ◽  
Legal Problems ◽  
Early Twentieth Century ◽  
The Will ◽  
The Law

‘Classical’ contract law was built on a substantive premise about contract law and two premises about legal method. The substantive premise was voluntaristic: the business of contract law is to enforce the will or choice of the parties. The first methodological premise was positivistic: the law is found, implicitly or explicitly, in the decisions of common law judges. The second methodological premise was conceptualistic: the law should be stated in general formulas which can be tested by their coherence. Finally, ‘classical’ contract law reflected an attitude about how best to steer a course — as every legal system must — between strict rules and equitable considerations. Since the early twentieth century, classical contract law has been breaking down. Allegiance to its premises has weakened as has the preference for rigor. At the same time, scholars have found classical law to be inconsistent even in its own terms. Nevertheless, much of it has remained in place faute de mieux while contemporary jurists have tried to see what is really at stake in particular legal problems. This article describes their work.

Contextualism: ‘The Modern Approach to Statutory Interpretation’

2018 ◽  
Vol 41 (4) ◽  
Author(s):  
Jeffrey Barnes
Keyword(s):  
Legal System ◽  
Court Cases ◽  
Statutory Interpretation ◽  
Modern Approach ◽  
High Court ◽  
Football Club ◽  
High Court Of Australia ◽  
Scholarly Attention

The widespread realisation that ‘[l]egislation is the cornerstone of the modern legal system’ (Justice McHugh) has brought increased judicial and scholarly attention to legislation’s partner, statutory interpretation. In CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 the High Court of Australia referred to the ‘modern approach to statutory interpretation’. That modern approach has subsequently been called ‘contextualism’. The central questions addressed in this article are: what is contextualism? Is it principled? And is it a coherent general approach? After stating and illustrating key principles from six High Court cases, the author considers challenges to contextualism, including textualism and purposivism. Like the statutes it monitors, statutory interpretation may be ‘broad and deep and variegated’, as Lord Wilberforce once observed. But, at the same time, it is concluded that statutory interpretation does not lack a general approach that lends coherence to the interpretative enterprise – for contextualism performs this function.

scholarly journals THE REFORM OF FRENCH CONTRACT LAW: A CRITICAL OVERVIEW

2016 ◽  
Vol 61 (1) ◽  
pp. 43 ◽  
Author(s):  
Alexis Downe
Keyword(s):  
Contract Law ◽  
Civil Code ◽  
Point Of View ◽  
International Standards ◽  
Judicial Interpretation ◽  
The World ◽  
The Government ◽  
The Many ◽  
Critical Overview ◽  
Scholarly Attention

Since the Napoleonic Code of 1804 we have seen republics, monarchies and empires coming and going; local and world wars; revolutions, from the industrial to the informational; and our society has moved from an economy based on agriculture to one open to the world, based on tertiary services. In all this time, French contract law has been able to stay up and keep up to date with the many changes in society, thanks to the judicial interpretation of the various articles of the French civil code and the generality of its articles. There have been many previous attempts to reform French contract law but its principles, forged in 1804, have escaped unscathed, except for certain transpositions of European directives. This article focuses on an academic point of view with regards the reforms to the French civil code that will bring private contract law into line with modern international standards. This is the first step in a series of broader changes the government is making to the French law of obligations. This reform is said to have both adapted and revolutionised French contract law and merits scholarly attention.

Economic Approaches to Regulation

2010 ◽  
pp. 16-38 ◽  
Author(s):  
Cento Veljanovski
Keyword(s):  
Legal System ◽  
Law And Economics ◽  
Competition Law ◽  
Regulatory Reform ◽  
Social Regulation ◽  
Economic Regulation ◽  
Economic Theories ◽  
System P ◽  
The Subject ◽  
Simple Economic

Economics has been at the heart of regulatory reform beginning with the wave of deregulation and privatisations of the 1980s. This article focuses on economic theories of regulation, and the way economics has been used to design and evaluate regulation. As the title of this article suggests, there are a number of economic approaches. However, these all share the conviction that relatively simple economic theory can assist in understanding regulation, and providing practical tools for regulators to make regulation more effective and efficient. The subject matter of the economics of regulation covers at least four broad areas — economic regulation, social regulation, competition law, and the legal system. Here a broader view is taken encompassing competition and merger laws, and the field known as law-and-economics or the economics of law is illustrated which looks at the legal system.

Contract as Promise: Lessons Learned

2019 ◽  
Vol 20 (2) ◽  
pp. 367-379
Author(s):  
Charles Fried
Keyword(s):  
Twentieth Century ◽  
Contract Theory ◽  
Choice Theory ◽  
Contract Law ◽  
Lessons Learned ◽  
Self Determination ◽  
Theory Approach ◽  
The Law ◽  
The Way

Abstract In The Choice Theory of Contracts, Hanoch Dagan and Michael Heller state that by arguing “that autonomy matters centrally to contract,” Contract as Promise makes an “enduring contribution . . . but [its] specific arguments faltered because [they] missed the role of diverse contract types and because [it] grounded contractual freedom in a flawed rights-based view. . .. We can now say all rights-based arguments for contractual autonomy have failed.” The authors conclude that their proposed choice theory “approach returns analysis to the mainstream of twentieth-century liberalism – a tradition concerned with enhancing self-determination that is mostly absent in contract theory today.” Perhaps the signal flaw in Contract as Promise they sought to address was the homogenization of all contract types under a single paradigm. In this Article, I defend the promise principle as the appropriate paradigm for the regime of contract law. Along the way I defend the Kantian account of this subject, while acknowledging that state enforcement necessarily introduces elements — both normative and institutional — for which that paradigm fails adequately to account. Of particular interest and validity is Dagan and Heller’s discussion of contract types, to which the law has always and inevitably recurred. They show how this apparent constraint on contractual freedom actually enhances freedom to contract. I discuss what I have learned from their discussion: that choice like languages, is “lumpy,” so that realistically choices must be made between and framed within available types, off the rack, as it were, and not bespoke on each occasion. I do ask as well how these types come into being mutate, and can be deliberately adapted to changing circumstances.

A Critique of “Democratic Administration” and Its Supporting Ideation

1977 ◽  
Vol 71 (4) ◽  
pp. 1488-1507 ◽  
Author(s):  
Robert T. Golembiewski
Keyword(s):  
Public Choice ◽  
Political Science ◽  
Public Administration ◽  
Choice Theory ◽  
Public Choice Theory ◽  
Major Work ◽  
Democratic Administration ◽  
Key Concepts ◽  
Intellectual Crisis

This paper analyzes Vincent Ostrom's major work, The Intellectual Crisis in American Public Administration, which he offers as providing paradigmatic direction for public administration and political science. The analysis urges caution as to that theory's status, especially from five analytic perspectives. Basically, attention is directed at the methodology or mode of inquiry associated with Ostrom's grounding of his argument in public choice theory, with special attention to the role of values. The adequacy of major assumptions of Ostrom's argument as descriptions of reality also is evaluated. Moreover, the critical lack of content in several key concepts is established. In addition, the analysis shows how opposite and simultaneous courses of action are implied by the argument. Finally, attention is directed at how Ostrom's argument can lead to unexpected consequences, even some that are opposite those effects Ostrom intends.

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