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From Baby-Selling to Boilerplate: Reflections on the Limits of the Infrastructures of the Market Margaret Jane Radin University of Toronto
Osgoode Hall Law Journal Volume 54, Issue 2 (Winter 2017) Special Issue: Introduction to the Law and Markets: Article 2 Regulating Controversial Exchange Guest Editors: Kimberly Krawiec, Poonam Puri and Mitu Gulati 2017 CanLIIDocs 3678 From Baby-selling to Boilerplate: Reflections on the Limits of the Infrastructures of the Market Margaret Jane Radin University of Toronto Follow this and additional works at: http://digitalcommons.osgoode.yorku.ca/ohlj Part of the Law Commons Special Issue Article This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License. Citation Information Radin, Margaret Jane. "From Baby-selling to Boilerplate: Reflections on the Limits of the Infrastructures of the Market." Osgoode Hall Law Journal 54.2 (2017) : 339-376. http://digitalcommons.osgoode.yorku.ca/ohlj/vol54/iss2/2 This Special Issue Article is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion in Osgoode Hall Law Journal by an authorized editor of Osgoode Digital Commons. From Baby-selling to Boilerplate: Reflections on the Limits of the Infrastructures of the Market Abstract Market-inalienability has a central place in developed societies that embrace private law institutions and a traditional understanding of the role of the polity in underwriting, managing, and preserving those institutions. Market-inalienability is a form of non-commodification. Taking up the issue of what things or relationships can be treated as commodities, I first critique a mode of inquiry—a traditional view of law and economics—that finds no problem with commodification of anything whatsoever. -
On the Conceptual Confusions of Jurisprudence Aaron J
View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Washington University St. Louis: Open Scholarship Washington University Jurisprudence Review Volume 7 | Issue 1 2014 On the Conceptual Confusions of Jurisprudence Aaron J. Rappaport Follow this and additional works at: https://openscholarship.wustl.edu/law_jurisprudence Part of the Courts Commons, History of Philosophy Commons, Judges Commons, Jurisprudence Commons, Legal History Commons, Legal Theory Commons, and the Rule of Law Commons Recommended Citation Aaron J. Rappaport, On the Conceptual Confusions of Jurisprudence, 7 Wash. U. Jur. Rev. 77 (2014). Available at: https://openscholarship.wustl.edu/law_jurisprudence/vol7/iss1/7 This Article is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Jurisprudence Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. ON THE CONCEPTUAL CONFUSIONS OF JURISPRUDENCE AARON J. RAPPAPORT INTRODUCTION For more than half a century, legal theory has focused on a particular objective—to understand and describe the “concept” of law.1 In that pursuit, theorists have employed a methodology aptly called “conceptual analysis.”2 The result has been a series of striking claims about law's nature—that law has a fixed essence, that it is fundamentally normative, that it is based on the “marriage” of primary and secondary -
Method and Principle in Legal Theory
Book Review Method and Principle in Legal Theory Stephen R. Perryt The Practice of Principle: In Defence of a PragmatistApproach to Legal Theory. By Jules L. Coleman.* Oxford. Oxford University Press, 2001. Pp. 226. $39.95. Jules Coleman is an exceptionally distinguished legal theorist who has made significant contributions to many different fields in legal and political philosophy, but he is particularly well known for his work in tort theory and in jurisprudence. In tort theory, he has offered a powerful and sustained defense of the view that tort law is best understood by reference to the principle of corrective justice.' In jurisprudence, he is one of the two most prominent contemporary legal positivists-the other is Joseph Raz-and also the leading proponent of the view that has come to be known as inclusive legal positivism.2 That view holds that while a particular legal system's criteria of legality-the criteria that determine which norms are to count in the system as legal norms-must be grounded in a social convention of a certain kind, the criteria themselves need not refer exclusively to social sources; contrary to what Raz has argued, the sources of law can also be moral in character. t John J. O'Brien Professor of Law and Professor of Philosophy, University of Pennsylvania Law School. I would like to thank the participants in a workshop at Duke Law School for their helpful comments on an earlier draft of this Review. * Wesley Newcomb Hohfeld Professor of Jurisprudence and Professor of Philosophy, Yale University. 1. See, e.g., JULES L. -
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Scanned by CamScanner Scanned by CamScanner Scanned by CamScanner Scanned by CamScanner Scanned by CamScanner Scanned by CamScanner Scanned by CamScanner IRONING OUT THE CREASES: RE-EXAMINING THE CONTOURS OF INVOKING ARTICLE 142(1) OF THE CONSTITUTION Rajat Pradhan* ABSTRACT In the light of the extraordinary and rather frequent invocation of Article 142(1) of the Constitution of India, this note expounds a constructive theory of perusing Article 142(1) by the Supreme Court. The central inquiry seeks to answer the contemporaneous question of whether Article 142 can be invoked to make an order or pass a decree which is inconsistent or in express conflict with the substantive provisions of a statute. To aid this inquiry, cases where the apex court has granted a decree of divorce by mutual consent in exercise of Article 142(1) have been examined extensively. Thus the note also examines the efficacy and indispensible nature of this power in nebulous cases where the provisions of a statute are insufficient for solving contemporary problems or doing complete justice. INTRODUCTION An exemplary provision, Article 142(1) of the Constitution of India envisages that the Supreme Court in the exercise of its jurisdiction may pass such enforceable decree or order as is necessary for doing ‘complete justice’ in any cause or matter pending before it. While the jurisprudence surrounding other provisions of the Constitution has developed manifold, rendering them more concrete and stable interpretations, Article 142(1) is far from tracing this trend. The nature and scope of power contemplated in Article 142(1) has continued to be mooted imaginatively. -
Positivism and the Inseparability of Law and Morals
\\server05\productn\N\NYU\83-4\NYU403.txt unknown Seq: 1 25-SEP-08 12:20 POSITIVISM AND THE INSEPARABILITY OF LAW AND MORALS LESLIE GREEN* H.L.A. Hart made a famous claim that legal positivism somehow involves a “sepa- ration of law and morals.” This Article seeks to clarify and assess this claim, con- tending that Hart’s separability thesis should not be confused with the social thesis, the sources thesis, or a methodological thesis about jurisprudence. In contrast, Hart’s separability thesis denies the existence of any necessary conceptual connec- tions between law and morality. That thesis, however, is false: There are many necessary connections between law and morality, some of them conceptually signif- icant. Among them is an important negative connection: Law is, of its nature, morally fallible and morally risky. Lon Fuller emphasized what he called the “internal morality of law,” the “morality that makes law possible.” This Article argues that Hart’s most important message is that there is also an immorality that law makes possible. Law’s nature is seen not only in its internal virtues, in legality, but also in its internal vices, in legalism. INTRODUCTION H.L.A. Hart’s Holmes Lecture gave new expression to the old idea that legal systems comprise positive law only, a thesis usually labeled “legal positivism.” Hart did this in two ways. First, he disen- tangled the idea from the independent and distracting projects of the imperative theory of law, the analytic study of legal language, and non-cognitivist moral philosophies. Hart’s second move was to offer a fresh characterization of the thesis. -
Ebook Download Fundamental Legal Conceptions As Applied in Judicial
FUNDAMENTAL LEGAL CONCEPTIONS AS APPLIED IN JUDICIAL REASONING BY WESLEY NEWCOMB HOHFELD 1ST EDITION PDF, EPUB, EBOOK David Campbell | 9781351935210 | | | | | Fundamental Legal Conceptions As Applied in Judicial Reasoning by Wesley Newcomb Hohfeld 1st edition PDF Book A few examples may serve to make this clear. Sc , "Domicile, therefore, is an idea of the law. A new nomenclature was accordingly invented by Bentham, which is convenient for scientific use, although it has not found its way into ordi- nary language. Bees Printwg Co. The same observations apply, mutatis mutandis, to the term "liberty. In view of the considerations thus far emphasized, the importance of keeping the conception of a right or claim and the conception of a privilege quite distinct from each other seems evident ; and, more than that, it is equally clear that there should be a separate term to represent the latter relation. People C, passim ; JUen v. Once the "escrow" is formed, the grantor still has the legal title : but the grantee has an irrevocable power to divest that title by performance of certain conditions i. Search icon An illustration of a magnifying glass. Sudclen [ISOfi] 1 Q. Take the case of a trust. People , 13 N. Right in the narrow sense — as the correlative of duty — is too well la Terry, Leading Principles of Anglo-American Law, eh. The term "license," sometimes used as if it wtn-. August 5, Bates 1S65 , 34 L. Woync Co. Brtsc Co. In view of what has already been said, very little may suffice con- cerning a liahility as such. It may here be noted that it has happened over and over again that given legal relations were at first "exclusive"' but that after a time, because of changes in the common law, they became "concurrent. -
Pragmatism, Feminism, and the Problem of Bad Coherence
Michigan Law Review Volume 93 Issue 6 1995 Pragmatism, Feminism, and the Problem of Bad Coherence Catharine Pierce Wells University of Southern California Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Law and Gender Commons, Property Law and Real Estate Commons, and the Public Law and Legal Theory Commons Recommended Citation Catharine P. Wells, Pragmatism, Feminism, and the Problem of Bad Coherence, 93 MICH. L. REV. 1645 (1995). Available at: https://repository.law.umich.edu/mlr/vol93/iss6/23 This Review is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. PRAGMATISM, FEMINISM, AND THE PROBLEM OF BAD COHERENCE Catharine Pierce Wells* REINTERPRETING PROPERTY. By Margaret Jane Radin. Chicago: University of Chicago Press. 1993. Pp. xi, 265. $29.95. I. INTRODUCTION Professor Radin1 bases Reinterpreting Property on her well known and justly admired articles on property law and theory. It is a rich repository of original insight, lucid analysis, and sharp debate. None of the essays that it includes is entirely new.2 What is new is a long and substantive introduction that analyzes her ten-year project on property law in terms of the insights and methodological com mitments of philosophical pragmatism (pp. 1-34). This manner of developing a theory - beginning with substantive positions and only later articulating the method that spawns them - is a very pragmatic and remarkably useful way to proceed. -
Paternalism, Unconscionability Doctrine, and Accommodation Author(S): Seana Valentine Shiffrin Source: Philosophy & Public Affairs, Vol
Paternalism, Unconscionability Doctrine, and Accommodation Author(s): Seana Valentine Shiffrin Source: Philosophy & Public Affairs, Vol. 29, No. 3 (Summer, 2000), pp. 205-250 Published by: Wiley Stable URL: http://www.jstor.org/stable/2672846 . Accessed: 18/04/2013 10:30 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp . JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. Princeton University Press and Wiley are collaborating with JSTOR to digitize, preserve and extend access to Philosophy &Public Affairs. http://www.jstor.org This content downloaded from 137.148.11.31 on Thu, 18 Apr 2013 10:30:47 AM All use subject to JSTOR Terms and Conditions SEANAVALENTINE SHIFFRIN Paternalism, UnconscionabilityDoctrine, and Accommodation INTRODUCTION The unconscionability doctrine in contract law enables a court to decline to enforce a contract whose terms are seriously one-sided, overreaching, exploitative, or otherwise manifestly unfair.' Some examples of its de- ployment include the refusal to enforce: contracts that charge usurious loan rates,2a contract paying a grossly inadequate sum for an annuity,3a one-sided, mandatory employment arbitration agreement -
Rhetorical Capture
Symposium: Political Discourse, Civility, and Harm January 14, 2012 RHETORICAL CAPTURE Margaret Jane Radin* “Rhetorical capture” refers to a form of discourse using conclusory labels. Forms of rhetorical capture include begging the question, capture by antithesis, capture by substitution, and capture by assimilation. Begging the “baseline” question has been especially prevalent in legal and political discourse; for example, the assertion that antidiscrimination rights “take” the property rights of owners who wish to exclude assumes a baseline that the owners had the right to discriminate in the first place. Capture by antithesis or substitution is also prevalent, as in “war is peacekeeping” and “attack is defense.” Another form of rhetorical capture, capture through assimilation, occurs when a word bearing culturally good connotations is applied to a practice that may not warrant those connotations—for example, the assumption that receiving a set of fine-print terms divesting important rights from an unknowing consumer is “freedom of contract.” When rhetoric displaces reasoning in matters important to democracy, democracy suffers. * Henry King Ransom Professor of Law, University of Michigan, and William Benjamin Scott and Luna M. Scott Professor of Law, emerita, Stanford University. Professor Radin is the author of Reinterpreting Property (University of Chicago Press 1993), Contested Commodities (Harvard University Press 1996), and Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law (Princeton University Press, forthcoming 2012). Thanks to the editors of the Arizona Law Review for their helpful and careful work on this Essay, and to Meera El-Farhan for able research assistance on short notice. 458 ARIZONA LAW REVIEW [VOL. -
Law and Obligations
Osgoode Hall Law School of York University Osgoode Digital Commons Articles & Book Chapters Faculty Scholarship 2002 Law and Obligations Leslie Green Osgoode Hall Law School of York University Source Publication: The Oxford Handbook of Jurisprudence and Philosophy of Law. Oxford, UK: Oxford University Press, 2002. Follow this and additional works at: https://digitalcommons.osgoode.yorku.ca/scholarly_works Repository Citation Green, Leslie, "Law and Obligations" (2002). Articles & Book Chapters. 119. https://digitalcommons.osgoode.yorku.ca/scholarly_works/119 This Book Chapter is brought to you for free and open access by the Faculty Scholarship at Osgoode Digital Commons. It has been accepted for inclusion in Articles & Book Chapters by an authorized administrator of Osgoode Digital Commons. Osgoode Hall Law School of York University Osgoode Digital Commons Articles & Book Chapters Faculty Scholarship 2002 Law and Obligations Leslie Green Osgoode Hall Law School of York University Follow this and additional works at: http://digitalcommons.osgoode.yorku.ca/scholarly_works Repository Citation Green, Leslie, "Law and Obligations" (2002). Articles & Book Chapters. Paper 119. http://digitalcommons.osgoode.yorku.ca/scholarly_works/119 This Book Chapter is brought to you for free and open access by the Faculty Scholarship at Osgoode Digital Commons. It has been accepted for inclusion in Articles & Book Chapters by an authorized administrator of Osgoode Digital Commons. Law and Obligations Oxford Handbooks Online Law and Obligations Leslie Green The Oxford Handbook of Jurisprudence and Philosophy of Law Edited by Jules L. Coleman, Kenneth Einar Himma, and Scott J. Shapiro Print Publication Date: Jan Subject: Law, Jurisprudence and Philosophy of Law 2004 Online Publication Date: Sep DOI: 10.1093/oxfordhb/9780199270972.013.0013 2012 Abstract and Keywords This article explores grounds for scepticism and measures its implications for legal theory. -
Princeton Philosophy
Princeton University Politics 563/Philosophy 526 Spring 2017 Prof. Robert P. George This seminar will consider a range of issues in philosophy of law with particular emphasis on various dimensions of the relationship between law and morality. Course Requirements: Students are required to read each week's assignments carefully and participate regularly in class discussions. Each student must make a presentation to the seminar. Two writing options are available: (1) a research paper or (2) two shorter, critical essays. Readings are drawn mainly from contemporary legal philosophers working within the tradition of analytic jurisprudence. Those readings marked with an asterisk (*) are on E-Reserves. The following books (all available in paperback editions) are worth purchasing: Ronald Dworkin, Law’s Empire John Finnis, Natural Law and Natural Rights (2nd edition) --------------, Philosophy of Law (in Collected Essays, Vol. IV) Lon L. Fuller, The Morality of Law H.L.A. Hart, The Concept of Law (2nd edition) Joseph Raz, Practical Reason and Norms Week 1: Organizational Meeting John Finnis, Philosophy of Law, ch. 5 (“A Grand Tour of Legal Theory”) Week 2: Hart's Concept of Law H.L.A. Hart, The Concept of Law, chs. I-VI *Jonathan Cohen, "Critical Notice of Hart's The Concept of Law," in Mind, Vol. 71 (1962) Week 3: Hart’s Legal and Political Philosophy H.L.A. Hart, The Concept of Law, chs. VII-IX John Finnis, Philosophy of Law, chs. 10 and 11 Week 4: Dworkin vs. Hart *Ronald Dworkin, Taking Rights Seriously, chs. 2-4 H.L.A. Hart, The Concept of Law, Postscript *H.L.A. -
PHILOSOPHY of LAW Seventh Edition
PHILOSOPHY OF LAW Seventh Edition Edited by Joel Feinberg University of Arizona Jules Coleman Yale Law School THOMSON WADSWORTH Australia • Canada • Mexico • Singapore • Spain < s» United Kingdom • United States CONTENTS PREFACE ix PART ONE: THE NATURE OF LAW 1 The Natural Law Tradition 8 Brian Bix, "Natural Law Theory" 8 Lon L. Füller, "Eight Ways to Fail to Make Law" 20 Positivism and Its Critics 24 John Austin, "A Positivist Conception of Law" 24 H. L. A. Hart, "A More Recent Positivist Conception of Law" 36 H. L. A. Hart, "Positivism and the Separation of Law and Morals" 50 Lon L. Füller, "Positivism and Fidelity to Law— A Reply to Professor Hart" 67 Ronald M. Dworkin, "The Model of Rules" 82 Riggs v. Palmer 100 Jules L. Coleman and Brian Leiter, "Legal Positivism" 105 Law From the Perspective of the Judge 119 O. W. Holmes, Jr., "The Path of the Law" 119 Jerome Frank, "Legal Realism" 125 Ronald Dworkin, "Integrity in Law" 127 Lon L. Füller, "The Case of the Speluncean Explorers" 142 John Hart Ely, "Discovering Fundamental Values" 157 David Lyons, "Constitutional Interpretation and Original Meaning" 172 Antonin Scalia, "Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws" 187 Ronald Dworkin, "Comment" 196 CONTENTS The Moral Obligation to Obey the Law 204 Plato, Crito 204 Martin Luther King, Jr., "Letter from Birmingham Jail" 213 M. B. E. Smith, "Is There a Prima Facie Obligation to Obey the Law?" 221 Scott J. Shapiro, "Authority" 236 PART TWO: JUSTICE 258 Liberty 267 John Stuart Mill, "On Liberty" 267 Joel Feinberg, "Offensive Nuisances" 278 Gerald Dworkin, "Paternalism" 293 Rights 304 Joel Feinberg, "The Nature and Value of Rights" 304 F.