Beyond Gift and Bargain: Some Suggestions for Increasing Kidney Exchanges

Each year, thousands of people in the United States die from end stage renal disease (ESRD), despite the fact that we have the medical knowledge necessary to save them. The reason is simple: these people need a kidney transplant and we have too few kidneys. Given our current technology, the only way to meet the massive annual shortfall between the number of kidneys that are donated and the number of kidneys that are necessary to save the lives of those with ESRD is to increase the number of living donations. The debate on how to do so has often pitted those who favor creating a “free market” in human organs against those who believe that the selling of organs by human donors poses unacceptable evils and risks. Current law prohibits donors from being paid for kidneys. Once the donation has been made, however, the kidney will often change hands in exchange for money several times before reaching the patient. There are no serious proposals to ban such transactions. This article generally sympathizes with those who favor the free alienation of kidneys by donors in exchange for payment. The goal of this article, however, is not to make another charge across the no man’s land separating free-marketeers from prohibitionists. Rather, it aims to explore ways in which we can increase trust in order to foster a promising new development in transplant medicine: extended kidney exchange

The Supreme Court’s Theory of Private Law

In this Article, we revisit the clash between private law and the First Amendment in the Supreme Court\u27s recent case, Snyder v. Phelps, using a private-law lens. We are scholars who write about private law as individual justice, a perspective that has been lost in recent years but is currently enjoying something of a revival. Our argument is that the Supreme Court\u27s theory of private law has led it down a path that has distorted its doctrine in several areas, including the First Amendment–tort clash in Snyder. In areas that range from punitive damages to preemption, the Supreme Court has adopted a particular and dominant, but highly contested, theory of private law. It is the theory that private law is not private at all; it is part and parcel of government regulation, or public law in disguise. Part I is a brief overview of how that jurisprudential view came to be, as well as a sketch of a competing view of private law as individual justice. In Part II, we briefly trace the development of the doctrine surrounding the tension between the First Amendment and private law, particularly tort law, and how it helps lead to the view of private law as government regulation displayed in Snyder. We also point out how the intentional infliction of emotional distress tort, the main claim at issue in Snyder, is a particularly poor vehicle for the Court\u27s theory of private law. A relatively recent tort, it was developed by scholars and judges as a means of redress for plaintiffs who had been wronged, but were left without a remedy. Part III presents the central claims of the Article. We argue that the conception of private law as government regulation in Snyder arises from a combination of (1) the doctrinal tools that judges use in First Amendment cases, (2) the unitary nature of the state-action doctrine, and (3) the influence of instrumentalism, specifically in obscuring the plaintiff\u27s agency and the state interest in redress, and in privileging a particular view of compensation. In Part IV, we present some normative or prescriptive implications of our analysis, and then conclude

The Supreme Court’s Theory of Private Law

In this Article, we revisit the clash between private law and the First Amendment in the Supreme Court\u27s recent case, Snyder v. Phelps, using a private-law lens. We are scholars who write about private law as individual justice, a perspective that has been lost in recent years but is currently enjoying something of a revival. Our argument is that the Supreme Court\u27s theory of private law has led it down a path that has distorted its doctrine in several areas, including the First Amendment–tort clash in Snyder. In areas that range from punitive damages to preemption, the Supreme Court has adopted a particular and dominant, but highly contested, theory of private law. It is the theory that private law is not private at all; it is part and parcel of government regulation, or public law in disguise. Part I is a brief overview of how that jurisprudential view came to be, as well as a sketch of a competing view of private law as individual justice. In Part II, we briefly trace the development of the doctrine surrounding the tension between the First Amendment and private law, particularly tort law, and how it helps lead to the view of private law as government regulation displayed in Snyder. We also point out how the intentional infliction of emotional distress tort, the main claim at issue in Snyder, is a particularly poor vehicle for the Court\u27s theory of private law. A relatively recent tort, it was developed by scholars and judges as a means of redress for plaintiffs who had been wronged, but were left without a remedy. Part III presents the central claims of the Article. We argue that the conception of private law as government regulation in Snyder arises from a combination of (1) the doctrinal tools that judges use in First Amendment cases, (2) the unitary nature of the state-action doctrine, and (3) the influence of instrumentalism, specifically in obscuring the plaintiff\u27s agency and the state interest in redress, and in privileging a particular view of compensation. In Part IV, we present some normative or prescriptive implications of our analysis, and then conclude

How to Judge Shari\u27a Contracts: A Guide to Islamic Marriage Agreements in American Courts

This Article thus has two goals. The first is to show how the Muslim conception of marriage diverges from the Christian-influenced norms that dominate American law and society. Understanding this divergence provides a necessary background to Islamic mahr contracts. The second goal is to provide lawyers and judges with a doctrinal framework within our current law for analyzing these contracts and reaching sensible results in concrete cases

Unity and Pluralism in Contract Law

It is a cliché of contemporary legal scholarship that, in the last few decades, the study of law has witnessed a vast proliferation of competing theoretical approaches. The old faith in the careful honing of doctrinal concepts and the essential usefulness of legal analysis has given way to a cacophony of competing theoretical sects. Economists, moral philosophers, sociologists, historians, and others have stepped forward to offer the insights of this or that discipline as a new and superior path to legal enlightenment. Perhaps nowhere has this cliché been truer than in the realm of contracts scholarship, where, for a generation, the competing disciplinary approaches have been energetically proselytizing for their chosen theories. Hence, modern legal scholarship abounds with economic, philosophical, and sociological theories of contract law. Most contracts scholars take one of two basic approaches. On one side stand those who, while acknowledging the usefulness of the new theoretical tools, remain unconverted to any of them. With lawyerly pragmatism, they remain skeptical of unifying theoretical enterprises. Human experience and the law are too complex for academic reductionism, they argue, and a good gray compromise of competing principles and policies is the best that we can hope for. On the other side are those who declare that theory works. The problem with pragmatism, they assert, is that ultimately it fails to provide either illumination or concrete conclusions. We are left with little more than a series of ad hoc ipse dixits lacking coherence or justification. In contrast, rigorous theory of one sort or another offers the promise of real understanding. Obviously, both portraits are overdrawn, and individual scholars fall at different points along the spectrum between them. Nevertheless, the tension between pragmatism and theory explicitly or implicitly pervades much of contemporary contracts scholarship. Into this discussion comes Contract Theory by Stephen A. Smith. Published as part of Oxford University Press\u27s Clarendon Law Series, Smith\u27s book, despite its aggressively boring title, is a fascinating and important contribution to the current debates. Part textbook and part original analysis, Smith surveys most of the prominent contemporary theories of contract law and ultimately offers a detailed argument in favor of a unified theory built around the moral force of promising. Smith is a legal philosopher by training, and he has a philosopher\u27s faith in theory. Hence, Contract Theory squarely challenges the pragmatic approach to contract law. Smith admits that [i]n the end . . . because there is little consensus as to the best theory of contract, studying contract theory mainly entails learning about competing theories (p. viii). Nevertheless, he clearly believes one may hope for greater unity and precision than a good gray compromise, and one of Contract Theory\u27s contributions is Smith\u27s sustained discussion and defense of a set of criteria for winnowing out defective theories