Monthly Archives: November 2017

Does Contract Law Need Morality? The Slave, The Digital Pedophile, and The Indebted Gambler

Wenhao Liu and I have just posted to SSRN a draft of our paper discussing Nate Oman’s book, The Dignity of Commerce.  For those of you who have not yet read the Dignity of Commerce, I highly recommend it. I adopted it for my Advanced Contracts seminar last year and have done the same for this year. The book might also be a useful addition to a first-year contracts course, depending on your coverage, but it definitely works well for me in the more advanced setting.

In brief, The Dignity of Commerce sets out an ambitious market theory of contract, which Nate argues is a superior normative foundation for contract law than either the moralist or economic justifications that currently dominate contract theory. One of the book’s most important contributions is its emphasis on the positive role played by markets and thus, by extension, of contracts. In an era rife with warnings about the market’s dangers to society, Nate’s cogent reminder of the market’s benefits is both refreshing and welcome. I was particularly drawn to the discussion of the market’s (and, therefore, contract’s) often forgotten role in organizing productive social interactions. These social benefits, Nate argues, are so important that it is these benefits—rather than a commitment to markets in and of themselves—that justify the use of state resources to support markets, and thus contracts.

Nate’s theory is also descriptively appealing: by recognizing that conceptions of morality and blameworthiness impact contract law, The Dignity of Commerce surely provides a descriptively more realistic account of contract law than theories that contend that contract law is explained solely by economic considerations or solely by moral ones. We find Nate’s market theory of contract less successful as a normative or prescriptive theory, however. To our mind, Nate makes moral judgments about the validity of certain markets (and, therefore, certain contracts) without providing a theoretical framework to replace either the moralist or economic theories he rejects. As a result, we don’t think the market theory can provide meaningful guidance to courts, policymakers, or scholars confronted with the more difficult questions facing contract law.

We illustrate all of these points using the examples of forced slavery, “The Digital Pedophile,” “The Indebted Gambler,” and taboo (or pernicious) markets, such as commercial surrogacy and sex work. And, hey, what could be more fun than that?!

So, all in all, The Dignity of Commerce is definitely a worthwhile read and can easily be incorporated into contract law courses and seminars, especially if you try to spend some time asking students to think about the normative foundations of contract law and how courts should resolve some of the thornier questions that emerge.

And, of course, you should make sure to read our critique of the book, as well!

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Policy Shock Has Arrived!

And you can get it at a discount.

My new book, Policy Shock: Recalibrating Risk and Regulation After Oil Spills, Nuclear Accidents, and Financial Crises  (Cambridge University Press, November 2017) is finally here. It is edited by Duke University Rethinking Regulation program members Edward Balleisen, Professor of History and Duke’s Vice Provost for Interdisciplinary Studies; Lori Bennear, the Juli Plant Grainger Associate Professor of Energy Economics and Policy at the Nicholas School of the Environment; Kimberly Krawiec, the Kathrine Robinson Everett Professor of Law (AKA me!); and Jonathan Wiener, the William R. & Thomas L. Perkins Professor of Law, Professor of Environmental Policy, and Professor of Public Policy.

The book looks at responses to events over the last century in the U.S., Europe, and Japan, and assesses how they affected laws, regulations, and institutions. (A special discount of 30% off the list price is available from Cambridge University Press until June 1, 2018, by entering the code:  Policy17.)

I’ve included screen shots of the Table of Contents below. As you can see, some great authors are included here, representing contributions from law, economics, history, political science, psychology, engineering, and more.

I’ve also uploaded a pdf of the Introduction. 9781107140219_excerpt-2

You can also read this Q&A with my colleague and co-author, Jonathan Wiener, discussing the book.

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