Nathan Oman
College of William and Mary, Law, Faculty Member
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The Book of Mormon helped launch one of America's most successful religions, and millions around the world accept it as scripture. It is thus one of the more influential books to have been published in the United States. Ironically,... more
The Book of Mormon helped launch one of America's most successful religions, and millions around the world accept it as scripture. It is thus one of the more influential books to have been published in the United States. Ironically, precisely because of its role in the founding of Mormonism, the text of the Book of Mormon has often been ignored. Recently, however, the Book of Mormon has begun to attract the attention of scholars whose interest in the text goes beyond either religious devotion or the academic study of Mormonism. Rather, they look to the text as a literary creation of interest in its own right. This article brings this new approach into dialogue with the influential legal theory of Robert Cover. In so doing, it breaks new ground in the study of law and literature and shows how a close reading of the Book of Mormon text reveals a subtle debate about the nature of rule following that intersects with contemporary discussions in legal theory. These narratives illustra...
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In this Article, we revisit the clash between private law and the First Amendment in the Supreme Court's recent case, Snyder v. Phelps, using a private-law lens. We are scholars who write about private law as individual justice, a... more
In this Article, we revisit the clash between private law and the First Amendment in the Supreme Court's recent case, Snyder v. Phelps, using a private-law lens. We are scholars who write about private law as individual justice, a perspective that has been lost in recent years but is currently enjoying something of a revival. Our argument is that the Supreme Court's theory of private law has led it down a path that has distorted its doctrine in several areas, including the First Amendment-tort clash in Snyder. In areas that range from punitive damages to preemption, the Supreme Court has adopted a particular and dominant, but highly contested, theory of private law. It is the theory that private law is not private at all; it is part and parcel of government regulation, or "public law in disguise." Part I is a brief overview of how that jurisprudential view came to be, as well as a sketch of a competing view of private law as individual justice. In Part II, we brief...
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When legal theorists reflect on the law they often do so at one of two levels of abstraction. On one hand, there are discussions devoted to the question, “What is law?” They seek to provide an account that makes sense of law in the... more
When legal theorists reflect on the law they often do so at one of two levels of abstraction. On one hand, there are discussions devoted to the question, “What is law?” They seek to provide an account that makes sense of law in the broadest sense as a social phenomenon. This is the terrain of H.L.A. Hart’s The Concept of Law and the debates among natural lawyers, interpretivists, and the multiplying sects of legal positivists that Hart has spawned. On the other hand, there is of late a growing body of theoretical literature devoted to particular substantive areas of law. Hence, for example, we have debates over the normative foundations of contract law or the analytic coherence of tort law. This Article asks a question pitched at an intermediate concept: what is civil liability? Civil liability is not the same thing as the concept of law writ large. Nor can it be reduced to a particular substantive body of law such as torts, contracts, or restitution. As this Article demonstrates, i...
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Our theoretical approaches to contract law have dramatically over-estimated the importance of voluntary consent. The central thesis of this article is that voluntary consent plays at best a secondary role in the normative justification of... more
Our theoretical approaches to contract law have dramatically over-estimated the importance of voluntary consent. The central thesis of this article is that voluntary consent plays at best a secondary role in the normative justification of contract law. Rather, contract law should be seen as part of an evolutionary process of finding solutions to problems of social organization in markets. Like natural evolution, this process depends on variation and feedback. Unlike natural evolution, both the variation and the feedback mechanisms are products of human invention. On this theory, consent serves two roles in contract law. First, consent makes freedom of contract possible and freedom of contract generates variation in transactional structures. In effect, it creates a store of possible solutions to problems of social organization. Second, consent is one method among several by which "bad" solutions are weeded out and "good" solutions are selected. However, consent is...
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Research Interests: History and Legal History
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Research Interests: Law and Law and Religion
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Research Interests: Law, Civil Law, Economics, Private law, Duty, and 6 moreSocial Science Research Network, Tort, Damages, Private Law, Plaintiff, and Pleading
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Research Interests: Business, Christianity, Law, Constitutional Law, Economics, and 15 moreCorporate Law, Human Rights, Contraception, Freedom of Religion, Employment, Medicine, Commerce, Humans, Female, First Amendment, Corporations, Patient Protection and Affordable Care Act, Hobby, Harvard Law, and Insurance Coverage
The law of contracts is complex but remarkably stable. What we lack is a widely accepted interpretation of that law as embodying a coherent set of normative choices. Some scholars have suggested that either economic efficiency or personal... more
The law of contracts is complex but remarkably stable. What we lack is a widely accepted interpretation of that law as embodying a coherent set of normative choices. Some scholars have suggested that either economic efficiency or personal autonomy provide ...
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Recent cases involving religious businesses owners who object to providing services for same-sex weddings and resulting lawsuits have generated a vigorous academic and popular debate. That debate centers in part on the proper role of... more
Recent cases involving religious businesses owners who object to providing services for same-sex weddings and resulting lawsuits have generated a vigorous academic and popular debate. That debate centers in part on the proper role of religion in the market. This article develops three theories of the proper relationship between commerce and religion and applies them to these conflicts. The first approach would apply the norms of liberal democratic governments to market actors. The second approach posits that any market outcome is legitimate so long as it results from voluntary contracts. These approaches yield contradictory and indeterminate advice on the conflicts involving same-sex weddings and religious business owners. In place of them, this article defends the doux commerce theory, which argues that markets manage social pluralism but only so long as they are largely disconnected from deeper moral or political struggles. Under this theory, the outcome of the debate over religio...
Research Interests: Religion, Law, Constitutional Law, Economics, Practical theology, and 15 morePolitical Science, Gender and Sexuality, Politics, Markets, Law and Economics, Civil Rights, Banking and Finance law, Market, Dignity, LGBT rights, Practical Theology, LGBT Rights, Doux Commerce, Public Life, and Freedom of Contract
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Page 1. UNITY AND PLURALISM IN CONTRACT LAW Nathan Oman* ... between the legal explanation and the efficiency based explanation" (p. 133). It is not that judges and lawyers employ less sophisticated versions of the arguments made by... more
Page 1. UNITY AND PLURALISM IN CONTRACT LAW Nathan Oman* ... between the legal explanation and the efficiency based explanation" (p. 133). It is not that judges and lawyers employ less sophisticated versions of the arguments made by law and economics scholars. ...
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... of freedom of contract, I have concluded that the claim of convergence between autonomy and welfare ... virtues that must also be considered before we pass judgment on contract law's continueddecline. II. ... frequently will a... more
... of freedom of contract, I have concluded that the claim of convergence between autonomy and welfare ... virtues that must also be considered before we pass judgment on contract law's continueddecline. II. ... frequently will a majority be found of the same party; and the smaller the ...
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... Megan Kaufmann, Richard Thomas, and Kristen Clardy provided excellent research assistance. ... GORDON, THE MORMON QUESTION: POLYGAMY AND CONSTITUTIONAL CONFLICT IN NINETEENTH-CENTURY AMERICA (2002); Elizabeth Harmer-Dionne, Once a... more
... Megan Kaufmann, Richard Thomas, and Kristen Clardy provided excellent research assistance. ... GORDON, THE MORMON QUESTION: POLYGAMY AND CONSTITUTIONAL CONFLICT IN NINETEENTH-CENTURY AMERICA (2002); Elizabeth Harmer-Dionne, Once a Peculiar ...