'Integrity in Law’s Empire' (Cornell Legal Studies Research Paper No. 19-28) by Andrei Marmor
comments
In this paper I focus on Dworkin's arguments for the distinctive political virtue of integrity, arguing that we have serious reasons to doubt that the case for integrity has been made. I approach Dworkin’s complex argument in two main steps, following his two main arguments for the distinct value of integrity. The first, and more direct argument, is based on what Dworkin takes to be the grounds for rejecting “checkerboard laws”. The second argument is the one that ties the value of integrity to political legitimacy by way of articulating the value of integrity in light of its affinity with Fraternity, the idea of a “true community”, and the associative obligations such communities engender. I try to show in this paper that both of these lines of argument are not convincing.
'Is the ‘Mere Equity’ to Rescind a Legal Power? Unpacking Hohfeld’s Concept of ‘Volitional Control’' by Adam Reilly in (2019)
Oxford Journal of Legal Studies comments
Private lawyers owe a particular debt of gratitude to Hohfeld, given their widespread use of his scheme. An example is equitable rescission, where the entitlement to rescind a voidable transfer is now widely understood to be a Hohfeldian legal power. Yet, though scholars have been quick to use Hohfeld’s concept of legal power, they have given little sustained thought to what he meant by ‘volitional control’ and how we might identify it within the law. The result is that certain areas of law have been mislabelled as ‘power conferring’, most notably equitable rescission. This article seeks to unpack Hohfeld’s concept of ‘volitional control’ as terminological shorthand for the coincidence of two distinct elements: (i) the power holder’s normative intention to effect the relevant legal change; and (ii) her decision to effect that change as exhibited in power-exercising conduct. By these lights, the rescinding claimant does not have a legal power to rescind.
'Contract Law and the Liberalism of Fear' by Nathan B. Oman in (2019) 20(2)
Theoretical Inquiries In Law comments
Liberalism’s concern with human freedom seems related to contractual freedom and thus contract law. There are, however, many strands of liberal thought and which of them best justifies contract is a difficult question. In The Choice Theory of Contracts, Hanoch Dagan and Michael Heller offer a vision of contract based on autonomy. Drawing on the work of Joseph Raz, they argue that extending autonomy should be the law’s primary concern, which requires that we extend the range of contractual choices available. While there is much to admire in their work, I argue that autonomy as conceived by Dagan and Heller cannot justify contract law. First, there are reasons to doubt the coherence of autonomy as an ideal. Second, given the pluralism of liberal societies, which, for example, often include substantial numbers of religious believers who reject core assumptions of autonomy theory, it is doubtful that such a theory can legitimate contract law. A more modest version of liberalism concerned primarily with protection against cruelty and providing a modus vivendi in pluralistic societies is more tenable. Such a vision of liberalism yields a more modest vision of contract law. Rather than making it into another means of realizing the dream of a more autonomous self, it is enough that contract law facilitates commerce and the marketplace. Markets in turn can serve an important — albeit limited — role in sustaining the peaceful cooperation and coexistence toward which a more realistic liberalism should aim.
