In Defense of the Good Samaritan

In the year 1880, in Dalles City, Oregon, a large and valuable load of lumber fell into the Columbia River and was about to be carried away by the river\u27s waters. Since Savage, the owner of this lumber, was absent from the scene, Glenn - who, at that time, was doing construction work for Savage - furnished help and did service in saving the lumber from being washed away and lost. Seven years later, the Supreme Court of Oregon rejected Glenn\u27s claim that Savage owed him the reasonable value of his services as well as of the services of the workmen he employed in saving the lumber. The court did not deny that these services had been meritorious, and probably beneficial, to Savage, but it nonetheless insisted that the services could not create a legal liability on the part of Savage. To make him liable, the Court ruled, he must either have requested the performance of the service, or, after he knew of the service, he must have promised to pay for it. Otherwise, the law deems an act done for the benefit of another, without his request, as a voluntary act of courtesy, for which no action can be sustained. Were it otherwise, the Court explained, the result would be ruinous litigation, and the overthrow of personal rights and civil freedom. As the New Jersey Supreme Court had put it, in an earlier case cited by the Glenn Court, were such actions permitted, [n]o man\u27s private business...would be under his control, or free from the interference of strangers, perhaps idlers, drunkards, and perhaps enemies, under such pretences, drawing him from business into litigation. Furthermore, if the law were otherwise, it would do violence to some of the kindest and best effusions of the heart to suffer them afterwards to be perverted by sordid avarice. Hence, the law must not permit meritorious and generous acts to be afterwards converted into a pecuniary demand

Markets for Self-Authorship

Markets are complex phenomena with heterogeneous manifestations. They involve different types of goods and services and can be structured around different property and contract types. This plurality of markets justifies a careful attitude towards the definition of a market. It also counsels some suspicion towards overly-broad normative judgments, be they celebratory or critical, launched at markets-as-such. But markets are powerful institutions that significantly impact individuals, affect relationships, and shape societies. They should thus be subject to critical scrutiny vis-A-vis the various goals that justify the complex legal arrangements which sustain them. Promoting social welfare, rewarding desert, inculcating virtues, and spreading power are all worthy objectives that deserve their prominent status in this crucial exercise. But at least for a liberal polity, facilitating our self-authorship must be the fundamental goal. Markets play a vital autonomy-enhancing role of enabling mobility and expanding options. Appreciating the significance of these functions and their emancipatory potential implies that liberal polities should strive to shape markets in line with this telos of the market. I do not pretend to have offered an exhaustive treatment of this challenge in this short Article; 10 1 but I do hope that I have made some progress and, even more significantly, demonstrated the promise of this endeavor

Why Markets? Welfare, Autonomy, and the Just Society

Review of Eric A. Posner\u27s Radical Markets: Uprooting Capitalism and Democracy for a Just Society

Two Visions of Contract

A Review of Justice in Transactions: A Theory of Contract Law. by Peter Benson

The Distributive Foundation of Corrective Justice

There are two, apparently conflicting, approaches to private law theorizing. One approach - by now, dare I say, the prevailing approach - analyzes private law through the lens of its social, economic, cultural, or political meanings and ramifications. For the purposes of this Article, we may call the proponents of this approach the social values school. Other theorists, those who take a corrective justice approach, insist that the adjective private is significant and should be the starting point for any understanding of private law. They claim that this starting point inevitably generates a radically different understanding of private law. Organized around the Aristotelian concept of corrective justice, private law, as they envision it, is a realm with its own inner intelligibility, which appear to be isolated from the social, economic, cultural, and political realms. This Article is an attempt to evaluate the corrective justice approach to private law by concentrating on the accounts of one area in private law - the doctrine of restitution for wrongs and especially for appropriations. In Unjust Enrichment: A Study of Private Law and Public Values, I offered a theory of this body of law, which clearly belongs to the first approach to private law theory. Recently, in Restitutionary Damages as Corrective Justice, Ernest Weinrib - the most eloquent advocate of the corrective justice approach to private law - has offered a competing account. This Article confronts these accounts (briefly presented in Parts I and II, respectively) in order to address the competing approaches to private law. Part III of this Article attempts to isolate from Weinrib\u27s account a valuable lesson for any attempt at private law theorizing, including my own. I find persuasive the assertion that correlation between the defendant\u27s liability to the plaintiff\u27s entitlement is an indispensable component of private law. I concede that by overlooking this implication of the private nature of private law the social values school has too frequently blurred the distinction between private law and regulation. Moreover, I acknowledge that correlativity may require a refinement of my earlier account. In particular, I counsel caution towards any measure of recovery that vindicates not only the plaintiff\u27s claims to well-being and/or control, but also society\u27s condemnation of antisocial behavior