A Complainant-Oriented Approach to Unconscionability and Contract Law

This Article draws attention to a conceptual point that has been overlooked in recent discussions about the theoretical foundations of contract law. I argue that, rather than enforcing the obligations of promises, contract law concerns complaints against promissory wrongs. This conceptual distinction is easy to miss. If one assumes that complaints arise whenever an obligation has been violated, then the distinction does not seem meaningful. I show, however, that an obligation can be breached without giving rise to a valid complaint. This Article illustrates the importance of this conceptual distinction by focusing first on the doctrine of substantive unconscionability. I claim that the doctrine can be best explained by the way in which a party who engages in exploitative behavior may lose her moral standing to complain. It is because such a party has lost her moral standing to complain that the law, through unconscionability doctrine, bars her from bringing a legal complaint. This explanation avoids the oft-issued charge of paternalism and it also offers benefits over an alternative state-oriented account developed recently by Seana Shiffrin. Using the conceptual distinction behind this account of unconscionability, this Article further argues that recent theoretical debates about the relationship between contract law and morality have been largely misconceived. Those debates have focused on whether contract law and morality impose parallel obligations. Once one appreciates the difference between imposing obligations and recognizing complaints, the comparison looks quite different. Contract law recognizes valid complaints against broken promises, much as morality recognizes moral complaints

Vocations, Exploitation, and Professions in a Market Economy

In a market economy, members of professions—or at least those for whom their profession is a vocation—are vulnerable to a distinctive kind of objectionable exploitation, namely the exploitation of their vocational commitment. That they are vulnerable in this way arises out of central features both of professions and of a market economy. And, for certain professions—the care professions—this exploitation is particularly objectionable, since, for these professions, the exploitation at issue is not only exploitation of the professional’s vocational commitment but also of her even more basic commitment to morality

The Jiminy Advisor: Moral Agreements Among Stakeholders Based on Norms and Argumentation

An autonomous system is constructed by a manufacturer, operates in a society subject to norms and laws, and is interacting with end users. All of these actors are stakeholders affected by the behavior of the autonomous system. We address the challenge of how the ethical views of such stakeholders can be integrated in the behavior of the autonomous system. We propose an ethical recommendation component, which we call Jiminy, that uses techniques from normative systems and formal argumentation to reach moral agreements among stakeholders. Jiminy represents the ethical views of each stakeholder by using normative systems, and has three ways of resolving moral dilemmas involving the opinions of the stakeholders. First, Jiminy considers how the arguments of the stakeholders relate to one another, which may already resolve the dilemma. Secondly, Jiminy combines the normative systems of the stakeholders such that the combined expertise of the stakeholders may resolve the dilemma. Thirdly, and only if these two other methods have failed, Jiminy uses context-sensitive rules to decide which of the stakeholders take preference. At the abstract level, these three methods are characterized by the addition of arguments, the addition of attacks among arguments, and the removal of attacks among arguments. We show how Jiminy can be used not only for ethical reasoning and collaborative decision making, but also for providing explanations about ethical behavior

Nudges and other moral technologies in the context of power: Assigning and accepting responsibility

Strawson argues that we should understand moral responsibility in terms of our practices of holding responsible and taking responsibility. The former covers what is commonly referred to as backward-looking responsibility , while the latter covers what is commonly referred to as forward-looking responsibility . We consider new technologies and interventions that facilitate assignment of responsibility. Assigning responsibility is best understood as the second- or third-personal analogue of taking responsibility. It establishes forward-looking responsibility. But unlike taking responsibility, it establishes forward-looking responsibility in someone else. When such assignments are accepted, they function in such a way that those to whom responsibility has been assigned face the same obligations and are susceptible to the same reactive attitudes as someone who takes responsibility. One family of interventions interests us in particular: nudges. We contend that many instances of nudging tacitly assign responsibility to nudgees for actions, values, and relationships that they might not otherwise have taken responsibility for. To the extent that nudgees tacitly accept such assignments, they become responsible for upholding norms that would otherwise have fallen under the purview of other actors. While this may be empowering in some cases, it can also function in such a way that it burdens people with more responsibility that they can (reasonably be expected to) manage

A Model of Income Insurance and Social Norms

A large literature on ex ante moral hazard in income insurance emphasizes that the individual can affect the probability of an income loss by choice of lifestyle and hence, the degree of risk-taking. The much smaller literature on moral hazard ex post mainly analyzes how a “moral hazard constraint” can make the individual abstain from fraud (“mimicking”). The present paper instead presents a model of moral hazard ex post without a moral hazard constraint; the individual's ability and willing­ness to work is represented by a continuous stochastic variable in the utility function, and the extent of moral hazard depends on the generosity of the insurance system. Our model is also well suited for analyzing social norms concerning work and benefit dependency.Moral Hazard; Sick Pay Insurance; Labor Supply; Asymmetric Information  

A Model of Income Insurance and Social Norms

A large literature on ex ante moral hazard in income insurance emphasizes that the individual can affect the probability of an income loss by choice of lifestyle and hence, the degree of risk-taking. The much smaller literature on moral hazard ex post mainly analyzes how a “moral hazard constraint” can make the individual abstain from fraud (“mimicking”). The present paper instead presents a model of moral hazard ex post without a moral hazard constraint; the individual's ability and willingness to work is represented by a continuous stochastic variable in the utility function, and the extent of moral hazard depends on the generosity of the insurance system. Our model is also well suited for analyzing social norms concerning work and benefit dependency.moral hazard, sick pay insurance, labor supply, asymmetric information

Fiduciary Legal Ethics, Zeal, and Moral Activism

The recent turn to fiduciary theory among private lawyer scholars suggests that lawyer as fiduciary may provide a fresh justification for legal ethics distinct from moral and political accounts propounded by theorists in recent decades. This Article examines the justification and limits of fiduciary legal ethics. In the course of the investigation, it argues that the fiduciary relation of lawyer to client as defined in the ethics codes does not align perfectly with fiduciary principles in other legal domains, such as agency, trust, or corporate law. Lawyers are fiduciaries of their clients. Does that mean lawyers can never throttle back on partisan zeal for moral reasons? So it might seem, and so some scholars have argued. Ethics rules permit lawyers to withdraw from representations they find morally repugnant, but not to represent clients with diminished zeal. And yet there are cases, such as peeking at metadata inadvertently transmitted in documents sent by an adversary, or exploiting scrivener\u27s errors, where many lawyers understandably back off from the sternest implications of partisan zeal. Such cases call into question whether lawyer as fiduciary tells the whole story. An adequate theory of the lawyer-client fiduciary relationship must define the limits to fiduciary zeal as well as justify the fiduciary relationship itself. Otherwise, invoking the word fiduciary merely relabels the moral problem of partisan zeal rather than resolving it

A Model of Income Insurance and Social Norms

A large literature on ex ante moral hazard in income insurance emphasizes that the individual can affect the probability of an income loss by choice of lifestyle and hence, the degree of risk-taking. The much smaller literature on moral hazard ex post mainly analyzes how a “moral hazard constraint†can make the individual abstain from fraud (“mimickingâ€). The present paper instead presents a model of moral hazard ex post without a moral hazard constraint; the individual's ability and willingness to work is represented by a continuous stochastic variable in the utility function, and the extent of moral hazard depends on the generosity of the insurance system. Our model is also well suited for analyzing social norms concerning work and benefit dependency.Moral hazard; sick pay insurance; labor supply; asymmetric information

Persuasive Engagement: Exploiting lifestyle as a driving force to promote energy-aware use patterns and behaviours.

Electricity consumption has been rising significantly in the western world the last decades and this has affected the environment negatively. Efficient use and more energy conservative usage patterns could be ways to approach this problem. However, electricity has for a long time actively been hidden away and it is rarely thought of unless it ceases to exist. From the perspective of critical design, we have been working to find methods to visualise electricity and electricity consumption in everyday life to promote environmentally positive behavioural change. In this paper, we are looking at how aspects of lifestyles can be used in design as central driving forces that could lead to changed behaviour. Attempts to promote behavioural changes related to energy consumption might be successfully carried out when people are offered desirable alternatives that are engaging and that do not impose a perceived extra burden in their everyday life. This argument is exemplified through two design concepts, the AWARE Laundry Lamp and the Energy Plant, which are examples on how to increase people’s energy awareness and offer them means for reducing their energy consumption in the home. Both prototypes are inspired by current trends in lifestyle as well as actual observed user behaviour. Keywords: Interaction Design; Sustainable Design; Energy; Lifestyle; Persuasive Design</p

Morality and institutions: an exploration

This paper explores the question of how culturally varying views of ‘morality’, ‘fairness’ and ‘justice’, particularly those held by the rural poor in developing countries, influence the way people evaluate,work within, use and (sometimes) resist, economic institutions – especially the institutions that emerge or are actively promoted during ‘development’ (market-oriented or otherwise)? It reviews the way this and related questions have been dealt with in a wide range of subjects, including social anthropology, institutional economics, economic sociology, experimental economics, and the study of rural protest. It then discusses how insights about morality and its interactions with institutions could be incorporated more widely into our understanding of the relationship between institutions and development and, in particular, whether we should begin to understand moralities as part of the wider domain of informal institutions which interact with formal institutions to shape behaviours