An Empirical Appraisal of the Liberty of Contract
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Building a Better Mousetrap: Patenting Biotechnology in The
DRUZIN-FINAL FINAL (DO NOT DELETE) 10/24/2014 3:19 PM RESTRAINING THE HAND OF LAW: A CONCEPTUAL FRAMEWORK TO SHRINK THE SIZE OF LAW Bryan Druzin∗ ABSTRACT ............................................................................................... 59 I. INTRODUCTION ........................................................................................ 60 II. THE CASE FOR MINIMALISM ................................................................... 64 A. Assumptions and Starting Points ..................................................... 64 B. The Benefits of Minimalism ............................................................. 66 C. The Minimalist Approach to Economic Regulation ......................... 70 D. The Liability of Ideology—Both Left and Right ............................... 72 III. ARTICULATING A FRAMEWORK FOR LEGISLATIVE MINIMALISM ........... 73 A. Non-Interference .............................................................................. 75 B. Formalizing ...................................................................................... 77 C. Fine-Tuning ..................................................................................... 83 D. Dismantling ...................................................................................... 84 E. Concocting ....................................................................................... 85 IV. CLARIFYING THE FRAMEWORK ............................................................... 86 A. A Tabulated Comparison of the Strategies ..................................... -
Liberty of Contract
YALE LAW JOURNAL LIBERTY OF CONTRACT "The right of a person to sell his labor," says Mr. Justice Harlan, "upon such terms as he deems proper, is in its essence, the same as the right of the purchaser of labor to prescribe the conditions upon which he will accept such labor from the person offering to sell it. So the right of the employee to quit the service of the employer, for whatever reason, is the same as the right of the employer, for whatever reason, to dispense with the ser- vices of such employee ........ In all such particulars the employer and the employee have equality of right, and any legis- lation that disturbs that equality is an arbitrary interference with the liberty of contract, which no government can legally justify in a free land." ' With this positive declaration of a lawyer, the culmination of a line of decisions now nearly twenty- five years old, a statement which a recent writer on the science of jurisprudence has deemed so fundamental as to deserve quotation and exposition at an unusual length, as compared with his treat- ment of other points, 2 let us compare the equally positive state- ment of a sociologist: "Much of the discussion about 'equal rights' is utterly hollow. All the ado made over the system of contract is surcharged with fallacy." ' To everyone acquainted at first hand with actual industrial conditions the latter statement goes without saying. Why, then do courts persist in the fallacy? Why do so many of them force upon legislation an academic theory of equality in the face of practical conditions of inequality? Why do we find a great and learned court in 19o8 taking the long step into the past of deal- ing with the relation between employer and employee in railway transportation, as if the parties were individuals-as if they were farmers haggling over the sale of a horse ? 4 Why is the legal conception of the relation of employer and employee so at variance with the common knowledge of mankind? The late Presi- ' Adair v. -
Direct Democracy an Overview of the International IDEA Handbook © International Institute for Democracy and Electoral Assistance 2008
Direct Democracy An Overview of the International IDEA Handbook © International Institute for Democracy and Electoral Assistance 2008 International IDEA publications are independent of specific national or political interests. Views expressed in this publication do not necessarily represent the views of International IDEA, its Board or its Council members. The map presented in this publication does not imply on the part of the Institute any judgement on the legal status of any territory or the endorsement of such boundaries, nor does the placement or size of any country or territory reflect the political view of the Institute. The map is created for this publication in order to add clarity to the text. Applications for permission to reproduce or translate all or any part of this publication should be made to: International IDEA SE -103 34 Stockholm Sweden International IDEA encourages dissemination of its work and will promptly respond to requests for permission to reproduce or translate its publications. Cover design by: Helena Lunding Map design: Kristina Schollin-Borg Graphic design by: Bulls Graphics AB Printed by: Bulls Graphics AB ISBN: 978-91-85724-54-3 Contents 1. Introduction: the instruments of direct democracy 4 2. When the authorities call a referendum 5 Procedural aspects 9 Timing 10 The ballot text 11 The campaign: organization and regulation 11 Voting qualifications, mechanisms and rules 12 Conclusions 13 3. When citizens take the initiative: design and political considerations 14 Design aspects 15 Restrictions and procedures 16 Conclusions 18 4. Agenda initiatives: when citizens can get a proposal on the legislative agenda 19 Conclusions 21 5. -
Contracts of Adhesion-Some Thoughts About Freedom of Contract
CONTRACTS OF ADHESION-SOME THOUGHTS ABOUT FREEDOM OF CONTRACT FRIEDRICH KESSLER With the development of a free enterprise system based on an un- heard of division of labor, capitalistic society needed a highly elastic legal institution to safeguard the exchange of goods and services on the market. Common law lawyers, responding to this social need, trans- formed "contract" from the clumsy institution that it was in the six- teenth century into a tool of almost unlimited usefulness and pliability. Contract thus became the indispensable instrument of the enterpriser, enabling him to go about his affairs in a rational way. Rational be- havior within the context of our culture is only possible if agreements will be respected. It requires that reasonable expectations created by promises receive the protection of the law or else we will suffer the fate of Montesquieu's Troglodytes, who perished because they did not ful- fill their promises. This idea permeates our whole law of contracts, the doctrines dealing with their formation, performance, impossibility and damages. Under a free enterprise system rationality of the law of contracts has still another aspect.1 To keep pace with the constant widening of the market the legal system has to place at the disposal of the members of the community an ever increasing number of typical business trans- actions and regulate their consequences. But the law cannot possibly anticipate the content of an infinite number of atypical transactions into which members of the community may need to enter. Society, therefore, has to give the parties freedom of contract; to accommodate the business community the ceremony necessary to vouch for the delib- erate nature of a transaction has to be reduced to the absolute minimum. -
Conscience and At-Will Employment
Articles FIRING THOREAU: CONSCIENCE AND AT-WILL EMPLOYMENT James A. Sonne* It is a virtual axiom of the American workplace that, absent a contract or express law to the contrary, "an employer may terminate an employee at any time, for any reason or no reason at all."' Indeed, this presumption of "at-will" employment, which prevails in forty-nine states and the District of Columbia,' has been the law of the land for more than a century. Rooted in freedom of contract and private property principles, the rule is designed to yield efficiencies across a broad range of industries. Despite the prominence of at-will power, however, a growing (and potentially contradictory) trend in employment law, particularly in the health care field, is that employees should be protected in the exercise of their consciences-even if such exercise is contrary to their employers' wishes or the demands of their jobs.' This "conscience clause" movement is * Associate Professor, Ave Maria School of Law. B.A., Duke University; J.D., Harvard Law School. The author thanks George Remy and Jeffrey Melville for their research; Professors Richard Myers, Lynn Wardle, and Robert Vischer for their insights; Mary and Margaret Grace Sonne for their encouragement; and Ave Maria for its support. 1. Cynthia L. Estlund, Labor, Property, and Sovereignty After Lechmere, 46 STAN. L. REV. 305, 312 (1994). 2. See PETER 0. HUGHES, LABOR AND EMPLOYMENT LAW (MB) § 259.02 n.5 (2006) (observing "[e]mployment is presumed to be at will in ...every state" except Montana). For the District of Columbia, see Dantley v. -
The State Action Doctrine and the Principle of Democratic Choice
THE STATE ACTION DOCTRINE AND THE PRINCIPLE OF DEMOCRATIC CHOICE Wilson R. Huhn* I. INTRODUCTION ........................................................................ 1380 II. THE TRUE PURPOSE OF THE STATE ACTION DOCTRINE .......... 1383 III. THE “S TATE ACTION /P RIVATE ACTION ” DICHOTOMY ............ 1386 A. Textual Basis for the “State Action/Private Action” Dichotomy .......................................................... 1387 B. Critique of the Supreme Court’s Distinction Between State Action and Private Action ....................................... 1388 C. Critique of Progressive Scholarship Regarding the “State Action/Private Action” Dichotomy ....................... 1393 IV. THE “S TATE ACTION /S TATE INACTION” DICHOTOMY ............ 1397 A. The Principle of Democratic Choice with Regard to Civil Rights and Social Welfare Rights ............................ 1398 B. Textual and Historical Arguments Regarding Affirmative Duties ............................................................ 1399 C. Judicial Interpretation and Scholarly Commentary upon Social Welfare Rights ....................................................... 1404 D. The Principle of Democratic Choice and Social Welfare Rights .................................................................. 1407 E. Education and Protection as Affirmative Duties .............. 1407 F. Conclusion ........................................................................ 1415 V. THE “M ERE REPEAL /D ISTORTION OF GOVERNMENTAL PROCESS ” DICHOTOMY ........................................................... -
Sponsoring a Statewide Initiative Or Referendum Petition
September 2021 SPONSORING A STATEWIDE INITIATIVE, REFERENDUM OR CONSTITUTIONAL AMENDMENT PETITION The Michigan Constitution provides: “The people reserve to themselves the power to propose laws and to enact and reject laws, called the initiative, and the power to approve or reject laws enacted by the legislature, called the referendum.” Article 2, § 9 of the 1963 Michigan Constitution. “Amendments may be proposed to this constitution by petition of the registered electors of this state.” Article 12, § 2 of the 1963 Michigan Constitution. These rights are invoked through the statewide ballot proposal petitioning process, which is governed by the Michigan Election Law and overseen by the Secretary of State and Board of State Canvassers. Once a petition is filed with the Secretary of State, signatures are subjected to a verification process and the Board of State Canvassers determines whether the petition contains enough valid signatures to qualify for placement on the ballot at the next even-year, general November election. This publication outlines legal requirements and provides guidance to those interested in launching a petition drive to initiate new legislation, amend or repeal existing laws, subject newly enacted laws to a referendum vote, or amend the state constitution. There are different filing deadlines in effect for the 2021-2022 election cycle. This guide also highlights best practices which, although not legally required, are offered so that sponsors may minimize the risk that an error could disqualify the petition. Legislative changes enacted in late 2018 and subsequent legal developments in 2019- 2020 altered the process for preparing and circulating statewide ballot proposal petitions. -
Initiative Coordinator INITIATIVE COORDINATOR Office of the Attorney General ATTORNEY GENERAL's OFFICE State of California P.O
1 5 - 0 0 4 5 John Cox P. 0. Box 3844 Rancho Santa Fe, CA 92067 ~CEIVEa Ashley Johansson JUL 2 3 2015 Initiative Coordinator INITIATIVE COORDINATOR Office of the Attorney General ATTORNEY GENERAL'S OFFICE State of California P.O. Box 994255 Sacramento, CA 94244-25550 Re: Request for Title and Summary for Proposed Initiative Dear Ms. Johansson: Pursuant to Article II, Section 10(d) of the California Constitution, I am submitting the attached proposed statewide ballot measure ("The Neighborhood Legislature Reform Act") to your office and request that you prepare a circulating title and summary of the measure as provided by law. I have also included with this letter the required signed statement pursuant to California Elections Code sections 9001 and 9608, and a check in the amount of$200. My address as registered to vote is shown on Attachment 'A' to this letter. Thank you for your time and attention to this important matter. Should you have any questions or require additional information, please contact the undersigned at (847) 274-8814. Very Truly Yours, -- 15-0045 :I INITIATIVE MEASURE TO BE SUBMITTED TO VOTERS SECTION 1. DECLARATION OF FINDINGS A. Our state Legislature does not serve the interests of the citizens. The Legislature only serves the special interests. Prior attempts at reform have all failed. B. The problem is that our Legislative districts are too big and cost taxpayers too much money. Our Legislators represent too many constituents. The average assembly district in the other 49 states has approximately 50,000 citizens. The average assembly district in California is nearly 10 times larger- approaching nearly 500,000 citizens. -
Contract Law Through the Lens of Laissez-Faire Richard A
University of Chicago Law School Chicago Unbound Coase-Sandor Working Paper Series in Law and Coase-Sandor Institute for Law and Economics Economics 1997 Contracts Small and Contract Large: Contract Law Through the Lens of Laissez-Faire Richard A. Epstein Follow this and additional works at: https://chicagounbound.uchicago.edu/law_and_economics Part of the Law Commons Recommended Citation Richard A. Epstein, "Contracts Small and Contract Large: Contract Law Through the Lens of Laissez-Faire" (Coase-Sandor Institute for Law & Economics Working Paper No. 49, 1997). This Working Paper is brought to you for free and open access by the Coase-Sandor Institute for Law and Economics at Chicago Unbound. It has been accepted for inclusion in Coase-Sandor Working Paper Series in Law and Economics by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. Contracts Small and Contract Large: Contract Law Through the Lens of Laissez-Faire by Richard A. Epstein* Introduction: A Fallen Theory? Laissez-faire capitalism, and its associated doctrine of freedom of contract, had many stalwart defenders during the nineteenth century. But it has received a rocky reception from many legal and philosophical commentators in the twentieth century. Freedom of contract often been pronounced "dead on arrival" as an organizing principle for complex contemporary societies. That principle has been said to be insensitive to differences in wealth, status, position and power that make the exercise of contractual choice a myth for the weak and dispossessed. Within the legal literature, it has been attacked as ignoring the large concentrations of wealth that distort market processes and that trample down the rights of consumers and workers. -
Libertarian Corporatism Is Not an Oxymoron
ROGERS.TOPRINTER (DO NOT DELETE) 6/14/2016 5:06 PM Libertarian Corporatism is Not an Oxymoron Brishen Rogers* Introduction Our constitutional democracy and our republican form of government, Joseph Fishkin and William Forbath argue in their recent work, depend on “a measure of economic and social democracy.”1 A truly democratic state, in their view, cannot just regulate powerful actors. It must also enable or positively encourage “robust intermediate organizations,” especially unions, to “offset the political power of concentrated wealth.”2 The history of the welfare state bears out this point. It is no accident that the era of mass unionization was also an era of quite progressive taxation, relatively tame executive compensation, and definancialization.3 Nor is it an accident that the decline of the welfare state, the decline of the labor movement, and the rise in income inequality have occurred in tandem in virtually every advanced economy.4 Mainstream policy debate around inequality, which focuses largely on ensuring progressive taxation, often misses this lesson.5 And yet empowering secondary associations can be very difficult in a constitutional culture that prizes individual liberty. It is not enough to just protect workers’ freedom to choose unionization while leaving other property relations intact,6 since economic elites will generally resist * Associate Professor, Temple University Beasley School of Law, [email protected]. The research leading up to this Essay was supported in part by the Roosevelt Institute’s Future of Work Initiative. For helpful comments and conversations, thanks to Willy Forbath, Joey Fishkin, and participants in the Texas Law Review Symposium on the Constitution and Economic Inequality. -
Property Law and the Mortgage Crisis: Libertarian Fantasies and Subprime Realities
Property law and the mortgage crisis: Libertarian fantasies and subprime realities Joseph William Singer* Libertarian thinking is on the rise in the United States, but libertarians wrongly characterise regulation as a deprivation of both freedom and property rights and an inefficient interference with the free market. While libertarians are correct to praise the value of freedom, they fail to appreciate how regulations promote liberty, property and efficiency. The subprime crisis reminds us that neither property nor liberty nor the market can exist without law. Laws establish minimum standards for economic and social relationships appropri- ate to a free and democratic society that treats each person with equal concern and respect. Property rights are structured by law to protect consumers from unfair practices and to ensure that economic relationships comply with minimum standards of decency. A THOUGHT EXPERIMENT What would markets look like if there was no law? In his satirical novel Jennifer Government, Max Barry answers this question. He brings to life a libertarian dystopia where deregulation has run amok.1 In Barry’s world, governments have been privatised and the free market is almost entirely unfettered by laws or rules. Freely negotiated contracts and competition among market actors determine the kind and level of services rendered in the economy. Laws exist that prohibit force or fraud but people have to pay to have those laws enforced. If you want government services, you have to pay for them. Laws prohibiting murder, for example, are enforced only if the victim’s family or friends hire government employees to bring the murderer to justice. -
Statewide Initiative Guide
2022 CA LIFORNIA SECRETARY OF STATE Statewide Initiative Guide Preface The Secretary of State has prepared this Statewide Initiative Guide, as required by Elections Code section 9018, to provide an understanding of the procedures and requirements for preparing and circulating initiatives, for filing sections of the petition, and describing the procedure of verifying signatures on the petition. This Guide is for general information only and does not have the force and effect of law, regulation, or rule. In case of conflict, the law, regulation, or rule will apply. Interested persons should obtain the most up-to-date information available because of possible changes in law or procedure since the publication of this Guide. Background and History of the Initiative Process In a special election held on October 10, 1911, California became the 10th state to adopt the initiative process. That year, Governor Hiram Johnson began his term by promising to give citizens a tool they could use to adopt laws and constitutional amendments without the support of the Governor or the Legislature. The new Legislature put a package of constitutional amendments on the ballot that placed more control of California politics directly into the hands of the people. This package included the ability to recall elected officials, the right to repeal laws by referendum, and the ability to enact state laws by initiative. The initiative is the power of the people of California to propose statutes and to propose amendments to the California Constitution. (Cal. Const., art. II, § 8(a).) Generally, any matter that is a proper subject of legislation can become an initiative measure; however, no initiative measure addressing more than one subject area may be submitted to the voters or have any effect.