Copyright (c) 2010 The Harvard Law Review Association Harvard Law Review Forum. March, 2010. 123 ... more Copyright (c) 2010 The Harvard Law Review Association Harvard Law Review Forum. March, 2010. 123 Harv. L. Rev. F. 1214. LENGTH: 15111 words INDUCING MORAL DELIBERATION: ON THE OCCASIONAL VIRTUES OF FOG. ...
Given the occasion, it seems appropriate to begin on a personal note. It should come as no surpri... more Given the occasion, it seems appropriate to begin on a personal note. It should come as no surprise that my father has influenced me enormously. It may seem a little more unusual that his work on commercial speech had a formative effect on me as a teenager. My father, Steve, as I ...
Some scholars defend the contract law's ban on punitive damage awards on the grounds that br... more Some scholars defend the contract law's ban on punitive damage awards on the grounds that breach of contract, in itself, is not mor-ally wrong. In this Article, I offer two responses. First, I refute one prevalent argument of Steven Shavell's in support of this view. Shavell argues that ...
I expand and clarify my position on lying and freedom of speech in response to three insightful ... more I expand and clarify my position on lying and freedom of speech in response to three insightful and constructive criticisms advanced by Professor Leslie Kendrick: first, that I overestimate the fragility of our moral practices of trust, 1 second, that I overvalue both sincere speech and free speech, 2 and third, that given the high value I attribute to sincere speech, it is perplexing and perhaps revealing of a latent ambivalence about my methodology that I do not advocate for stronger, more comprehensive legal regulations on lying. 3 I start in Part I by describing the dilemma Kendrick poses for my argument against lying: namely either that it depends on empirically dubious premises and underestimates the resilience of our moral culture of trust in each other's word, or that it normatively places inordinate value on the symbolic value of sincere speech. This second horn corresponds directly to her related criticism that I overvalue freedom of speech. In Part II, I clarify that my argument does not depend on the empirical predictions of which she is skeptical. Rather, my concerns about lying relate primarily to the way in which lies affect the rationality of testimonial trust. In Part III, I resist the characterization of my argument as a symbolic argument and explain why a commitment to preserve the rational reliability of testimonial practices escapes both horns of Kendrick's dilemma. In Part IV, I respond to Kendrick's complaint that I overvalue freedom of speech, and I argue against crafting exceptions to freedom of speech protections based on the repellant content contained in sincere speech or the unwelcome consequences that follow from its contemplation by audiences. In Part V, I address one concrete challenge Kendrick raises about how a moral theory intersects with law: if, as I maintain, lying threatens public values and should fall outside the scope of First Amendment protection, then shouldn't it always be illegal?
This Article considers the growing trend to enforce liquidated damages agreements or what I think... more This Article considers the growing trend to enforce liquidated damages agreements or what I think are more felicitously called " remedial clauses. " I criticize this trend on the grounds that a permissive approach to enforcing remedial clauses contravenes important public values. Although many have claimed the traditional presumption against such clauses is mysterious or unsupported, I contend that the traditional presumption against such clauses enforces important values central to the rule of law, including that private parties should not decide their own cases and that the public has a special interest in deciding what remedies are appropriate for breaches of legal duty. In delineating the theoretical foundations for treating remedial clauses differently than performance terms, I offer a distinctive, liberal, and democratic perspective on contract and contractual breach that answers the common arguments offered by libertarians and law and economics scholars that freedom of contract requires the contrary., members of a seminar at the Centre for the Study of European Contract Law at the University of Amsterdam, participants in the Cardozo Faculty Workshop, participants in the North American Workshop on Private Law Theory, the Yale Center for Law and Philosophy, and members of the Fordham Legal Theory Group. Many of my thoughts on moral and legal remedies emerged from a jointly taught seminar with Barbara Herman on moral remedies in 2008 and the contributions of our excellent graduate and law students.
Copyright (c) 2010 The Harvard Law Review Association Harvard Law Review Forum. March, 2010. 123 ... more Copyright (c) 2010 The Harvard Law Review Association Harvard Law Review Forum. March, 2010. 123 Harv. L. Rev. F. 1214. LENGTH: 15111 words INDUCING MORAL DELIBERATION: ON THE OCCASIONAL VIRTUES OF FOG. ...
Given the occasion, it seems appropriate to begin on a personal note. It should come as no surpri... more Given the occasion, it seems appropriate to begin on a personal note. It should come as no surprise that my father has influenced me enormously. It may seem a little more unusual that his work on commercial speech had a formative effect on me as a teenager. My father, Steve, as I ...
Some scholars defend the contract law's ban on punitive damage awards on the grounds that br... more Some scholars defend the contract law's ban on punitive damage awards on the grounds that breach of contract, in itself, is not mor-ally wrong. In this Article, I offer two responses. First, I refute one prevalent argument of Steven Shavell's in support of this view. Shavell argues that ...
I expand and clarify my position on lying and freedom of speech in response to three insightful ... more I expand and clarify my position on lying and freedom of speech in response to three insightful and constructive criticisms advanced by Professor Leslie Kendrick: first, that I overestimate the fragility of our moral practices of trust, 1 second, that I overvalue both sincere speech and free speech, 2 and third, that given the high value I attribute to sincere speech, it is perplexing and perhaps revealing of a latent ambivalence about my methodology that I do not advocate for stronger, more comprehensive legal regulations on lying. 3 I start in Part I by describing the dilemma Kendrick poses for my argument against lying: namely either that it depends on empirically dubious premises and underestimates the resilience of our moral culture of trust in each other's word, or that it normatively places inordinate value on the symbolic value of sincere speech. This second horn corresponds directly to her related criticism that I overvalue freedom of speech. In Part II, I clarify that my argument does not depend on the empirical predictions of which she is skeptical. Rather, my concerns about lying relate primarily to the way in which lies affect the rationality of testimonial trust. In Part III, I resist the characterization of my argument as a symbolic argument and explain why a commitment to preserve the rational reliability of testimonial practices escapes both horns of Kendrick's dilemma. In Part IV, I respond to Kendrick's complaint that I overvalue freedom of speech, and I argue against crafting exceptions to freedom of speech protections based on the repellant content contained in sincere speech or the unwelcome consequences that follow from its contemplation by audiences. In Part V, I address one concrete challenge Kendrick raises about how a moral theory intersects with law: if, as I maintain, lying threatens public values and should fall outside the scope of First Amendment protection, then shouldn't it always be illegal?
This Article considers the growing trend to enforce liquidated damages agreements or what I think... more This Article considers the growing trend to enforce liquidated damages agreements or what I think are more felicitously called " remedial clauses. " I criticize this trend on the grounds that a permissive approach to enforcing remedial clauses contravenes important public values. Although many have claimed the traditional presumption against such clauses is mysterious or unsupported, I contend that the traditional presumption against such clauses enforces important values central to the rule of law, including that private parties should not decide their own cases and that the public has a special interest in deciding what remedies are appropriate for breaches of legal duty. In delineating the theoretical foundations for treating remedial clauses differently than performance terms, I offer a distinctive, liberal, and democratic perspective on contract and contractual breach that answers the common arguments offered by libertarians and law and economics scholars that freedom of contract requires the contrary., members of a seminar at the Centre for the Study of European Contract Law at the University of Amsterdam, participants in the Cardozo Faculty Workshop, participants in the North American Workshop on Private Law Theory, the Yale Center for Law and Philosophy, and members of the Fordham Legal Theory Group. Many of my thoughts on moral and legal remedies emerged from a jointly taught seminar with Barbara Herman on moral remedies in 2008 and the contributions of our excellent graduate and law students.
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