Hanoch Dagan (Berkeley Law School) & Michael Heller (Columbia University - Columbia Law School) have posted Autonomy Defaults on SSRN. Here is the abstract:
You can scribble an agreement on a napkin or hire lawyers to negotiate hundreds of pages. Either way, most of your contractual obligations won’t be in your agreement. They will be in the background rules contract law applies absent your express agreement. Getting the defaults right is a core task of contract law; justifying those defaults is a core task of contract theory.
This Essay introduces autonomy defaults, the first conceptually-coherent and normatively-attractive account of contract law defaults. We show that defaults are justified to the extent they enhance our autonomy, understood as self-determination. They vindicate our autonomy through two pathways: empowering defaults that proactively facilitate people’s autonomy and safeguarding defaults that protect our future selves and ensure relational justice.
Sometimes, the parties to a commercial contract are legally-sophisticated, symmetrically-situated players who just want to get rich. There, the welfare-maximizing default is often the autonomy-enhancing one. But for the vast run of contracts involving ordinary people – getting jobs, getting married, buying homes, buying stuff – empowering and safeguarding defaults may diverge from their efficiency-based counterparts. In these cases, the law often does – and always should – opt for an autonomy default, even at the price of some inefficiency.
Highly recommended.
I was disappointed that there was no discussion of moral pluralism and public reason in this very fine paper.
