Band 2, Heft 1 - Contemporary Legal Scholarship: Achievements and Prospects

Contract law doctrines can be ranged along various spectra. One of these spectra runs from the static to the dynamic. A contract law doctrine lies at the static pole of this spectrum if its application turns entirely on what occurred at the moment in time when a contract was formed. A contract law doctrine lies at the dynamic pole if its application turns in significant part on a moving stream of events that precede, follow, or constitute the formation of a contract. Another spectrum runs from the binary to the multifaceted. Contract law doctrines are binary if they organize the experience within their scope into only two categories. Contract law doctrines are multifaceted if they organize the experience within their scope into several categories, including one or more intermediate categories. Classical contract law was a rigid, rather than a supple, instrument. Its rules were often responsive to neither the actual objectives of the parties, the actual facts and circumstances of the partiesâ transaction, nor the dynamic character of contracts. Instead, the rules of classical contract law were centered on a single moment in time, the moment of contract formation. accordingly, classical contract law doctrines were almost wholly static and also tended to be binary. The twentieth century witnessed the development of a modern contract law that has largely overthrown classical contract law. This overthrow has occurred in two ways. To begin with, in many cases modern contract law has reversed or fundamentally modified the rules of classical contract law. More important than the overthrow of specific rules of classical contract law, however, has been the overthrow of the deep structure of classical contract law. Where classical contract law had an overriding preference for rules that were objective and standardized, modern contract law has been highly flexible in adopting rules that are individualized and even subjective. Where classical contract law rules were typically binary, modern contract law rules are often multifaceted. Finally, where classical contract law was largely static, modern contact law is, in large part, dynamic. So, for example, static rules of interpretation have been replaced by dynamic rules that take into account events before and after the moment of contract formation; the static legal-duty rule has withered almost completely away, to be largely replaced by a dynamic modification regime that takes into account the value of ongoing reciprocity; a static judicial review of liquidated damages provisions is giving way to a dynamic review that takes account of the actual loss; and static offer-and-acceptance rules have been replaced by dynamic rules, such as the duty to negotiate in good faith.

The standard property trilogy of private, commons, and state has become so outdated that it now impedes imagination and innovation at the frontiers of ownership. This essay suggests two approaches - creating new ideal types and synthesizing existing ones - that may help update our static property metaphors. Using these dynamic approaches to property analytics, legal theory can move beyond polarizing oppositions that have made jurisprudential debates unsolvable and rendered concrete problems invisible.

In his essay The Dynamic Analytics of Property Law, Professor Michael Heller describes and criticizes the familiar, current analytical tools of property theory and calls for the adoption of a more dynamic approach. In this comment, I shall address briefly two issues discussed in Heller's paper: his suggestion that we add a fourth type of property – "anticommons property" – to the well-known "property trilogy" of private property, commons property, and state property; and his critique of the "bundle of rights" approach of the courts to the takings problem, which leads to excessive fragmentation of private property. The former issue nicely demonstrates the current tendency of scholars to argue against "too much private property." The latter illustrates the familiar, futile search of property scholars for an all-encompassing metaphor to describe and identify private property.

Over the last few decades, corrective justice has established itself as central to serious academic discussion of the normative dimension of tort liability. This article describes the consensus about corrective justice that is presently emerging, as is evident from work of the author and from recent work of other tort theorists (Jules Coleman, Stephen Perry, Arthur Ripstein, and Martin Stone). The framework for discussing this emerging consensus is what the article calls "the juridical conception of corrective justice." The juridical conception seeks to explicate the most general ideas implicit in liability as a normative practice in which the plaintiff makes a claim against the defendant. Under the juridical conception, corrective justice is the synthesis of two complementary abstractions: correlativity and personality. Correlativity articulates at the most general level the relationship between the interacting parties as doer and sufferer of the same injustice. Personality, i.e., the idea of purposiveness regardless of one's particular purposes, similarly articulates at the most general level the conception of the interacting parties that is presupposed in a regime of rights and their correlative duties. The leitmotif of the emerging consensus is the idea of correlativity, which is now effectively accepted by all of the theorists mentioned, even by those (Coleman and Perry) who initially rejected it. Personality, on the other hand, has gained less support, because of the apprehension that it implies that rational agency, as elaborated by Kant or Hegel, is a philosophical truth from which tort theory can be derived. This reason for dismissing personality is insufficient. Corrective justice comes into view not by being derived from a notion of rational agency but by reflection on the most general ideas implicit in liability as a normative practice. Personality is merely the abstraction that represents the parties as the bearers of rights and their correlative duties. Like correlativity, it owes its status within corrective justice to its being implicit in the law's doctrines and institutions. Consequently, whether the Kantian or Hegelian notion of rational agency is plausible is a philosophical question that lies beyond tort theory and that does not affect the place of personality within a corrective justice approach to liability. Moreover, if (as argued in this article) correlativity and personality are indeed complementary, acceptance of the former should lead to acceptance of the latter. Such acceptance would provide the theorists who now reject it with a concept that would be serviceable for their own formulations. In any case, the consensus about the highly structured notion of correlativity indicates that the main lines of the corrective justice approach to tort law are now firmly established. Although refinements inevitably remain to be made, radical revisions are unlikely to result from further reworking the standard material of corrective justice tort theory. Scholarly attention should instead turn to the examination of the place of corrective justice within the legal order as a whole and to the expansion of the corrective justice analysis from tort law to other bases of liability.

This article observes that one of the most interesting developments in tort scholarship during recent years has been the emergence of a literature analyzing tort problems from feminist perspectives. The article looks at three of the areas that feminist writers have explored: the possibility of a "reasonable woman" standard as an alternative to the "reasonable man"; the possible recognition of a duty to rescue, which allegedly would be in harmony with feminist ethics; and the issue of how the tort system should respond to types of harms that are disproportionately suffered by women. The article concludes that the feminist discussions of these topics have enriched the discourse of tort. Still, those discussions have been, in significant respects, inadequate. They have failed, for example, to take advantage of the relevant empirical information; and certain key issues relating to legal history and legal theory have remained underdeveloped.

It takes courage to characterize feminist writings on tort law as "thin." Indeed, Professor Schwartz in his provocative and challenging article examines feminist writings in a unique and innovative way. In his analysis of a number of such writings, he attempts to demonstrate that they either have not done enough or could have done better. His provocative analysis of many issues invites vigorous discussion. One could write a separate comment on each and every one of the issues he raises; however, I will limit my comment to two: the tension between the "reasonable man" and the "reasonable woman" standard and the (no) duty to rescue rule. It takes courage to characterize feminist writings on tort law as "thin." Indeed, Professor Schwartz in his provocative and challenging article examines feminist writings in a unique and innovative way. In his analysis of a number of such writings, he attempts to demonstrate that they either have not done enough or could have done better. His provocative analysis of many issues invites vigorous discussion. One could write a separate comment on each and every one of the issues he raises; however, I will limit my comment to two: the tension between the "reasonable man" and the "reasonable woman" standard and the (no) duty to rescue rule.

How does a country achieve a public capital market in which firms can raise capital from investors? In seeking clues and hypotheses, this article looks back to the dawn of the public corporation in the United States. The battles for control of the Erie Railroad, known as the "Scarlet Woman of Wall Street," a reference to its ill repute, stand at the symbolic center of these developments. The battles for control, which waxed and waned between 1868 and 1872, involved: the titan of the transportation age, Cornelius Vanderbilt; the brilliant and notorious stock market manipulator and takeover entrepreneur, Jay Gould; the largest and most powerful railroad of the era, the Pennsylvania; control over rail transportation to New York City; and the politics and courts of New York, Pennsylvania, and Ohio. It was played out in the securities markets, the courts, the legislatures, and the newspapers and attracted the attention, and condemnation, of some of the leading commentators of the day. Rereading this history from the vantage point of the end of the twentieth century, several features are striking. First, the battles are remarkably familiar: they are recognizably modern battles for control over a widely-held corporation. Second, many of the tactics utilized are now illegal. Finally, surprising connections emerge between antitrust, federalism, and the emergence of public capital markets.

The theoretical inquiry into the foundations of criminal law in the twentieth century, in both civil and common law traditions, is assayed by the consideration of seven main currents or trends. First, the structure of offenses is examined in light of the bipartite, tripartite, and quadripartite modes of analysis. Second, competing theories of culpability - normative and descriptive - are weighed in connection with their important ramifications for the presumption of proof and the allocation of the burden of persuasion on defenses. Third, the struggle with alternatives to punishment for the control and commitment of dangerous but non-criminal persons is compared in civil and common law approaches. Fourth, the ascendancy of feminism, as the most successful interdisciplinary school of thought applied to criminal law since the early 1970s, and its contributions in the areas of rape, self-defense, provocation, and capital punishment are charted and weighed. Fifth, one of the most distinctive facets of criminal theory in the last century has been the emergence of the victims' rights movement; its success is compared in civil and common law jurisdictions. Sixth, while it is commonplace in the civil law tradition to embed issues of criminal law within the principles of constitutional law, common law jurisdictions vary; the increasing constitutionalization of criminal law in Canada is contrasted with its decrease in the U.S. Seventh, against the backdrop of a particularly intense period of codification of the criminal law in the last half of the twentieth century, the celebrated American Model Penal Code is criticized. Finally, four predictions for the direction of criminal theory in the next century are ventured.

The paper criticizes criminal law scholarship for helping to construct and failing to expose analytic structures that falsely claim a higher level of rationality and coherence than current criminal law theory deserves. It offers illustrations of three such illusions of rationality. First, it is common in criminal law discourse for scholars and judges to cite any of the standard litany of "the purposes of punishment" -- just deserts, deterrence, incapacitation of the dangerous, rehabilitation, and sometimes other purposes -- as a justification for one or another liability rule or sentencing practice. The cited "purpose" gives the rules an aura of rationality, but one that is, in large part, illusory. Without a principle defining the interrelation of the "purposes," nearly any rule can be justified by some "purpose of punishment." Thus, a decision maker can switch among distributive principles as needed to provide an apparent rationale for whichever rule the person prefers, even if that preference is not based on rational criteria. A second example is found in a central mechanism for determining an offenderâs blameworthiness: the use of an individualized objective standard. The widely used mechanism avoids the problems acknowledged to attend a strictly objective standard. A person's situation and capacities are central to an assessment of whether a person can be fairly blamed for a violation, and the individualized objective standard allows the decision maker to take these into account. At the same time, the mechanism avoids reversion to a completely subjective standard, which might exempt many blameworthy cases from liability. In reality, however, the mechanism only shifts the form of the problem. Codes that use the individualized objective standard fail to provide a principle by which one can determine those characteristics of an offender with which the objective standard ought to be individualized and those with which it ought not. Without a governing principle, the issue again is left to the discretion of decision makers, with no guidance as to how that discretion is to be exercised. A final illusion obscures whether the criminal justice system is, in fact, in the business of "doing justice." The "criminal justice" system imposes "punishment" and encourages moral condemnation of those found "guilty" of "crimes." But while the system cultivates its doing-justice image, it increasingly shifts to a system of essentially preventive detention, where a violator's sanction is derived more from what is needed to incapacitate him from committing future offenses than to punish him for a past offense. There are great advantages to the deception, but also serious costs and inefficiencies. The paper discusses why some illusions are more objectionable than others and what the existence of such illusions says about modern criminal law scholarship.

American public law scholarship views law as a purposive instrument for the achievement of democratic purposes. It has analyzed how this instrument can best be employed within the historical context of the legal institutions and traditions of particular nation-states. Emerging forms of international law, articulated by international tribunals, challenge these fundamental premises of American public law scholarship. Much international law does not reflect the will of an indentifiable demos, and it is articulated through innovative legal institutions that combine the procedures and organizational forms of many distinct states and legal cultures. Attempting to omprehend the sources and limitations of the legitimacy of this kind of international law will force American public law scholarship to re-examine deep and implicit presuppositions, inherited from legal realism, about the inherent normativity of the rule of law. The author speculates about possible effects of this re-examination on the substantive and methodological agenda of American public law scholarship.

Robert Post's work in constitutional theory is engaging in an exceptional way: it always forces one to rethink and reconsider the basic tenets of the field. In his article The Challenge of Globalization to American Public Law Scholarship, Post discusses American public law and human rights scholarship in the age of globalization. In this comment, I will make a few remarks on some of the points raised in the article.

A central trend in the development of discrimination law, in every jurisdiction, has been the movement from a requirement of intention to ground a complaint to the recognition as actionable of indirect or adverse effect discrimination. Initially, liability for discrimination was circumscribed very narrowly, requiring a form of intention that was tantamount to malice. The practical consequences of this narrow conception were apparent early on, and those concerned about them have long been agitating, with some success, for a reading or redrafting of anti-discrimination statutes that would yield broader liability. Advocacy (both practical and theoretical) in the discrimination law context has tended to swing wildly between two extremes -- from a virtually exclusive focus on the moral blameworthiness of the defendant to an attempt to focus solely on the effects of discrimination on its victims. This article seeks to reexamine the gradual expansion of liability in discrimination law from the perspective of the key conceptual elements of liability in tort law in order to reexamine the normative underpinnings of this area of law. Viewed from a tort perspective, the enlargement of the scope of discrimination law can best be understood as resulting from an implicit expansion of the concept of fault appropriate to this context of human interaction, a change linked to an expanding conception of the human interests that discrimination law protects from infringement. From its beginnings, discrimination law implicitly recognized that deliberately refusing to contract with others out of ill will or prejudice toward an important aspect of identity such as race or sex constituted an affront to human dignity that could not be justified by the value of freedom of contract. The expansion of liability over time reflects an expansion of the concept of human dignity bound up with fair access to important opportunities and due consideration of the needs and interests of differently situated groups in the design of important social institutions. This conception of dignity constructs it as an objective interest that can be affected by implicitly discriminatory behavior as well as by conduct motivated by prejudice, requiring more robust justification than the mere claim to liberty. This approach can explain many of the advances in modern discrimination law without resorting to end-state distributive principles.