Philosophical Issues in Contract Law

Arudra Burra ()

January 18, 2011

Course description

This course has two main goals. The first is to alert law students to the philosophical complexities underlying a body of law that is easily taken for granted. The second is to give students of philosophy a glimpse of the richness of the law as a source of insight and intuitions about philosophical questions of very general interest.

Our focus will be on exploring various limitations to the freedom of contract in a market economy. Not all contracts are enforceable, and sometimes the restrictions on freedom of contract derive from specifically moralconsiderations. Some of these restrictions seem to derive from restrictions on the kindof thing that is being exchanged: some have thought, for instance, that contracts for surrogacy, or for the sale of body parts, are morally dubious and perhaps ought not to be legally enforceable. Other restrictions seem to derive from the conditions under which a contract is made: contracts induced by coercion and deception are deemed invalid. Still other restrictions seem to follow from substantive features of the terms of the contract, for instance in the claim that “unconscionable” contracts cannot be enforced because they are unfair or exploitative.

In this course we will explore the question of how such restrictions to freedom of contract might be justified. This will require, in part, close attention to some of the concepts just invoked– in particular, those of coercion, deception, and exploitation. It will also require us to address the more general question of the relationship between contract law and theories of distributive justice.

Prerequisites

This course does not require any specific background in either law or philosophy.

Administrative matters

Office hours:

Mondays 4-6 pm and by appointment (Law 3468).

Email address:

Readings

There is no required text for this class: readings will either be available online or posted on eRes.

Schedule

The course runs for 13 weeks on the law school semester calendar. We meet weekly on Tuesdays, 5-7 pm in Law 3211A. There is no class on February 23 (“law school Monday”)

Students requiring special accommodation are encouraged to contact Dean Cheadle ().

Grading

Law students

Class participation: 20%

In addition to in-class participation, you will be expected to send me a short (one paragraph) comment or question every week by midnight on the Monday before class that week. These may relate to the readings assigned for that week, or to the class discussion from the previous week. Your participation grade will not depend upon the quality of your responses, but only upon the fact of your having responded.

Paper: 80%

The bulk of your grade will depend upon a final research paper of about20-25 pages; I will say more about the paper requirements in the course of the semester. Final papers are due by 4 pm on Thursday, May 12 (the last day of class). You must send me a first draft of the paper by Thursday, April 12 (a month before the final deadline), but you are encouraged to contact me early on for guidance on paper topics and material. Please talk to me if you wish this paper to satisfy your Substantial Analytic Writing requirement.

Graduate students in philosophy: Your grade will be determined solely on the basis of your final paper; deadlines to be arranged on a case-by-case basis.

Outline

The following syllabus is provisional. We will stick to the general outline described below, but I may alter some of the readings as we go along, and add or substract material.

Commodification [three sessions]

Session 1:

Judith Andre, “Blocked Exchanges: A Taxonomy” (JSTOR)

Session 2:

Margaret Jane Radin, “Market-Inalienability” (JSTOR), sections I-B, II-A, II-B, IV-C, V (concentrate on V).

Session 3:

Elizabeth Anderson, “The Ethical Limitations of the Market” (eRes)

Martha Nussbaum, “Whether From Reason or Prejudice: Taking Money for Bodily Services”(JSTOR)

Coercion [three sessions]

Session 4:

Robert Nozick, “Coercion” (eRes)

Session 5:

Selections from Leo Katz, Ill-Gotten Gains(eRes)

Session 6:

Legal materials on economic duress, tbd

Deception, mistake, undue influence [three sessions]

Session 7:

Roderick M. Chisholm and Thomas D. Feehan, “The Intent to Deceive” (JSTOR)

Friedrich Kessler and Edith Fine, “Culpa in Contrahendo, Bargaining in Good Faith, and Freedom of Contract: A Comparative Study” (JSTOR)

Session 8:

Anthony Kronman, “Mistake, Disclosure, Information, and the Law of Contracts” (JSTOR)

James W. Childs, “Can Libertarianism Sustain a Fraud Standard” (JSTOR)

Session 9:

Selections from Robert Cialdini, Influence (eRes)

Case-law, tbd

Exploitation and unconscionability [three sessions]

Session 10:

Selections from Joel Feinberg, Harmless Wrongdoing (eRes)

Selections from Alan Wertheimer, Exploitation (eRes)

Session 11:

Richard Epstein, “Unconscionability: A Critical Reappraisal” (JSTOR)

Seana Shiffrin, “Paternalism, Unconscionability Doctrine, and Accommodation” (JSTOR)

Session 12:

James Gordley, “Equality in Exchange” (Hein)

Daniel Kahneman, Jack L. Knetsch and Richard Thaler, “Fairness as a Constraint on Profit Seeking: Entitlements in the Market” (JSTOR)

Wrap-up [one session]

Session 13:

No reading