Legal Theory

Class actions for monetary relief have long been the subject of in­tense legal and political debate. The stakes are now higher than ever. Contractual agreements requiring arbitration are proliferating, limit­ing the availability of class actions as a vehicle for collective redress. In Congress, legislative proposals related to class actions are mired in par­ti­san division. Democrats would roll back mandatory arbitration agree­ments while...

In the Nicomachean Ethics, Aristotle defined “equity” as the pro­cess that intervenes when law fails because of its generality. Equity is largely assumed to be the province of courts and framed primarily as the domain of judges: Should the court apply a general law when its appli­cation results in unforeseen or unfortunate consequences? But equity operates outside the courts also. Within legislatures and administrative agencies,...

This Essay seeks to reframe a longstanding debate by propounding a novel theory of judicial candor. Previous commentators on judicial candor have failed to draw a crucial distinction between obligations of candor, breaches of which constitute highly culpable failures, and ideals of candor that even the best judges fail to satisfy fully. This Essay argues for a theory of judicial candor that defines both minimal obligations and aspirational ideals...

Introduction Just Relationships develops a novel theory of private law for a liberal legal order. It argues that private law assumes the moral responsibility to determine just terms of interactions among private persons. Its most basic organizing ideas are substantive freedom and equality. We are grateful to Professors John Gardner, Robin West, and Benjamin Zipursky […]

Introduction Hanoch Dagan and Avihay Dorfman believe that theoretical work on private law has become too polarized. Ranged on one side, there are those who “conceptualize private law as a set of regulatory strategies with no . . . unique moral significance.” On the other side are those who associate private law with “values that dissociate it entirely […]

Introduction In their edifying and ambitious recent article Just Relationships, Professors Hanoch Dagan and Avihay Dorfman suggest that everyone before them has erred in their account of the distinction between public law and private law. Classic liberal scholars—a category meant to cover Thomas Hobbes and William Blackstone through the nineteenth century to Richard Epstein, Ernest […]

Scholars traditionally conceptualize private law around a commitment to the values of formal freedom and equality. Critics of the traditional view (including lawyer-economists) dispute the significance of a distinction between public and private law, construing private law as merely one form of public regulation. Both positions are flawed. The traditional position is conceptually misguided and normatively disap­pointing; the critical position...