Here are ten of my personal favorites from 2007:
Contractualism About Contract Law by Robin Kar.
Modern contract theory is in a quandary. Whereas consequentialist theorists typically point to principles of efficiency-maximization to account for the rules of modern contract law, and deontological theorists typically point to considerations of liberty or the ordinary morality of promise-keeping, none provides a satisfying and unified account of three central and highly stable aspects of modern contract law. These are: first, the standard remedies granted for contractual breaches; second, the centrality of the consideration doctrine; and, third, the tension between legal doctrines that require courts to defer to parties' voluntary assent when determining the existence or content of contractual obligations and doctrines that allow courts to police bargains for fairness. In this Article, I argue that contractualism - especially as elaborated in connection with Stephen Darwall's recent work on the second-person standpoint - has the power to harmonize these doctrines.
The Divergence of Contract and Promise by Seana Shiffrin.
In U.S. law, a contract is described as a legally enforceable promise. So to make a contract, one must make a promise. The legal norms regulating these promises diverge in substance from the moral norms that apply to them. This divergence raises questions about how the moral agent is to navigate both the legal and moral systems. This Article provides a new framework to evaluate the divergence between legal norms and moral norms generally and applies it to the case of contracts and promises. It introduces and defends an approach to the relationship between morality and law that adopts the perspective of moral agents subject to both sets of norms and argues that the law should accommodate the needs of moral agency. Although the law should not aim to enforce interpersonal morality as such, the law’s content should be compatible with the conditions necessary for moral agency to flourish. Some aspects of contract not only fail to support the morally decent person, but also contribute to a legal and social culture that is difficult for the morally decent person to accept. Indeed, U.S. contract law may sometimes make it harder for the morally decent person to behave decently.
The Hart-Dworkin Debate: A Short Guide to the Perplexed by Scott Shapiro.
For the past four decades, Anglo-American legal philosophy has been preoccupied – some might say obsessed – with something called the “Hart-Dworkin” debate. Since the appearance in 1967 of “The Model of Rules I,” Ronald Dworkin's seminal critique of H.L.A. Hart's theory of legal positivism, countless books and articles have been written either defending Hart against Dworkin's objections or defending Dworkin against Hart's defenders. My purpose in this essay is not to declare an ultimate victor; rather it is to identify precisely the core issue around which the debate is organized. Is the Hart-Dworkin debate, for example, about whether the law contains principles, as well as rules? Or does it concern whether judges have discretion in hard cases? Is it about the proper way to interpret legal texts in the American legal system? Or is it about the very possibility of conceptual jurisprudence?
The Living Constitution by Bruce Ackerman. Here is a taste:
A funny thing happened to Americans on the way to the twenty-first century. We have lost our ability to write down our new constitutional commitments in the old-fashioned way. This is no small problem for a country that imagines itself living under a written Constitution. We are now in the midst of great debates about abortion and religion, about federalism and the war powers of the presidency. But nobody expects a constitutional amendment to resolve any of these issues — instead, we see only symbolic gestures on matters like flag burning and gay marriage. Whatever the future may hold, don’t expect big changes through formal amendments. We the People can’t seem to crank out messages in the way described by Article V of our Constitution. Our writing machine has gone the way of the typewriter. But why?
The New Legal Realism by Thomas J. Miles and Cass R. Sunstein
The last decade has witnessed the birth of the New Legal Realism - an effort to go beyond the old realism by testing competing hypotheses about the role of law and politics in judicial decisions, with reference to large sets and statistical analysis. The New Legal Realists have uncovered a Standard Model of Judicial Behavior, demonstrating significant differences between Republican appointees and Democratic appointees, and showing that such differences can be diminished or heightened by panel composition. The New Legal Realists have also started to find that race, sex, and other demographic characteristics sometimes have effects on judicial judgments. At the same time, many gaps remain.
Original Meaning and Constitutional Redemption by Jack Balkin.
Fidelity to original meaning follows from our commitment to a written constitution that preserves enforceable legal meaning over time. Originalist lawyers and scholars shifted from original intention and original understanding theories to original meaning in the 1980s to answer important criticisms of originalism. They assumed that original meaning originalism would support most of the same criticisms of judicial activism and living constitutionalism that had motivated the turn to originalism. The distinction I emphasize between original meaning and original expected application was not salient in these debates. Nevertheless, once we recognize the full implications of this distinction, original meaning originalism is fully compatible with living constitutionalism.
The Prism of Rules by Mark Greenberg.
Most legal theorists, including almost all positivists and many others, take for granted or are implicitly committed to an assumption that is not an official part of positivism. The assumption is that the content of the law is determined by the contents of legally authoritative pronouncements. I call it the Pronouncement View (PV, for short). The kind of determination at issue here is constitutive, not epistemic. That is, PV concerns what makes the content of the law what it is, not how we ascertain the content of the law.
The Realism of the “Formalist” Age by Brian Z. Tamanaha.
It is almost a truism in contemporary legal theory and legal history that the 1870s through the 1920s was the age of formalism. Judges in this period applied logical methods, relied upon conceptual analysis, and rendered decisions in a rule-bound fashion that paid little heed to social consequences. The common law was characterized as comprehensive, gapless, and logically consistent, with a right answer for every case; law was understood to be a science. A more realistic view of law was ushered in by the Legal Realists, who built upon the writings of Oliver Wendell Holmes and Roscoe Pound to destroy formalistic thought. The Realists argued that the law is substantially indeterminate: there are gaps and inconsistencies in the law, exceptions can be found for most rules or principles, precedent often can be enlisted to support opposite outcomes. They argued that judicial decisions should not be based upon abstract conceptual analysis; rather, law is a means to social ends. A number of Realists argued that judicial decisions are the product of subjective predilections of judges, or that judges come to the result first, then structure their legal analysis to rationalize the result.
Rebooting Originalism by Stephen M. Griffin.
This article is a critique of the new originalism. New originalists such as Keith Whittington and Randy Barnett assert that the turn to emphasizing the public meaning of the Constitution, along with other improvements, has enabled originalism to answer the most serious objections leveled against it. This claim is questionable. I argue that these changes are more akin to an attempt to reboot the old originalism. On the positive side, I provide a theory that, unlike originalism, is capable of explaining and justifying the persistence in the federal courts of alternative legitimate forms of constitutional interpretation and the reality and legitimacy of informal constitutional change outside Article V.
Why Contracts Scholars Should Read Legal Philosophy: Positivism, Formalism, and the Specification of Rules in Contract Law by Curtis Bridgeman.
This paper approaches some questions surrounding formalism from the point of view of legal philosophy. It considers legal positivism, the view that law is a social artifact, and in particular it considers recent work in the positivist tradition called the planning theory of law. This theory sees law as a set of plans designed to solve certain coordination problems in society. In the beginning, these plans are typically partial, and then gradually become more specific over time, hopefully by those best qualified to do so. This paper questions whether modern informal contract law is capable of being law notwithstanding its reliance on vague, controversial normative terminology, given that law by its nature is supposed to settle disputes about such norms.
This article is a critique of the "new originalism." New originalists such as Keith Whittington and Randy Barnett assert that the turn to emphasizing the public meaning of the Constitution, along with other improvements, has enabled originalism to answer the most serious objections leveled against it. This claim is questionable. I argue that these changes are more akin to an attempt to "reboot" the old originalism. On the positive side, I provide a theory that, unlike originalism, is capable of explaining and justifying the persistence in the federal courts of alternative legitimate forms of constitutional interpretation and the reality and legitimacy of informal constitutional change outside Article V.
This article argues that the standard account of the formalist period is fundamentally incorrect. Quoting and citing many speeches and publications, it demonstrates that a consummately realistic view of law and judicial decision making was expressed throughout the so-called formalist period. Many of these realistic statements - mentioning the uncertainty of law, the availability of precedents on all sides, and the understanding that judges' subjective views influence their legal decisions - were uttered by judges, professors, and leaders of the bar. The article shows how the image of formalism was constructed by Roscoe Pound, Karl Llewellyn, and Grant Gilmore in a manner that systematically excluded this large body of realistic discourse, thereby creating a distorted portrayal of the period. Moreover, the article argues that our perception of the Legal Realists (and Holmes) as bold mavericks is erroneous. The Realists were merely the latest episode in a constant stream of skeptical observations about law and judging that extends back many decades.
And here are the papers that I posted on SSRN in 2007:
Download It While Its Hot: Open Access and Legal Scholarship
e f
