Some Pluralism About Pluralism: A Comment on Hanoch Dagan’s “Pluralism and Perfectionism in Private Law”

Hanoch Dagan is among “those who think it advantageous to get as much ethics into the law as they can,” in the phrase of Oliver Wendell Holmes, Jr. His pluralism is a perfectionism for polytheists: There are many human goods, and each has its domain, including some portion of the law of property. Depending on where we stand on the property landscape at any time, we may be community-minded sharers, devoted romantics in marriage, or coolly rational market actors, and the local property law will smooth each of these paths for us. Property law is built on the design of the multifarious human heart, or, if you prefer, the many purposes we pursue in our projects and relationships. Each of these implies a way of regarding others – as arm’s length collaborators, joint venturers, or other halves whose purposes we have joined to ours; property’s default rules anticipate and confirm these various attitudes

Can Contract Emancipate? Contract Theory and The Law of Work

Contract and employment law have grown apart. Long ago, each side gave up on the other. In this Article, we re-unite 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, need not be work law’s canonical “other.” The first step is to see that contract, rightly understood, 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 positive effects. First, it offers workers more secure protection than reliance on momentary public law compromises. Second, it reveals contract’s emancipatory potential for all of us – not just as workers, but even as widget buyers. Contract can empower, and employment can show us the wa

Choice Theory: A Restatement

This chapter restates choice theory, which advances a liberal approach to contract law. First, we refine the concept of autonomy for contract. Then we address range, limit, and floor, three principles that together justify contract law in a liberal society. The first concerns the state’s obligation to be proactive in facilitating the availability of a multiplicity of contract types. The second refers to the respect contract law owes to the autonomy of a party’s future self, that is, to the ability to re-write the story of one’s life. The final principle concerns relational justice, the baseline for any legitimate use of the contract power. We conclude this restatement of choice theory by highlighting its most important jurisprudential payoff – how our account relates to and improves on the economic analysis of contract. Choice theory is the modest price that economic analysis must pay to account for individual freedom

Two Visions of Contract

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

Autonomy for Contract, Refined

In The Choice Theory of Contracts, we advance a claim about the centrality of autonomy to contract. This Issue offers thoughtful and penetrating critiques. Here, we reply. Autonomy is the grounding principle of contract. In Choice Theory, we stressed the (1) 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: (2) regard for future selves and (3) 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. I. Robert Stevens argues that autonomy as self-authorship should not serve as contract law’s normative foundation. Drawing on H.L.A. Hart, we reply that the core of Stevens’ critique – rejecting modest affirmative duties in private law – is misplaced. Next, Stevens argues autonomy fails descriptively to account for existing law. In reply, we show choice theory does closely fit the law, including duress and non-disclosure, formation, privity, and remedies. Both of Stevens’ challenges rely on transfer theory, a view we reject. II. Arthur Ripstein argues that our analysis of transfer theory fails, in part, because it is not a “single thing,” with a shared set of commitments. We reply that his version, “the bilateral modification theory,” fares no better than other transfer theories. Second, Ripstein contends that we subscribe to a confused form of pluralism, that “is malleable enough to provide no real guidance.” We reply that autonomy generates powerful guidelines for shaping contract law. Choice theory is not foundationally value pluralist. III. Brian Bix offers a useful case study of choice in family law. He argues that state support for many types of family agreements is not grounded in autonomy and choice. We counter that family law highlights the floor of legitimate contractual interactions and the limit of contract when it adjusts for possible external effects, in particular, effects regarding children. Choice theory sharply cabins the indeterminacy inherent in “public policy” analysis, by comparison with the accounts of Stevens, Ripstein, and Bix. Each paper 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

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