CLR Forum

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 The best laid plans of mice and men go oft astray. For many years, John and Mary have carefully used birth control in order to pursue their joint careers as rising academics, and at the same time, realize (in summertime getaways) their major passions for explor­ing ancient civilizations and sites of Renaissance art and […]

Introduction Professor Dov Fox’s comprehensive, deeply meditated essay, Reproductive Negligence, argues convincingly that the laws of tort, contract, and property severally and jointly fail to govern the promises and perils of modern reproductive technologies in an acceptable way. Our “legal system . . . treats heedlessly switched sperm, lost embryos, and misdiag­nosed fetuses not as misconduct that it […]

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 Emerging technologies promise to expedite administrative rulemaking by analyzing public input through computerized natural lan­guage rather than clunky, old human brains. Moving far beyond software that keyword searches and deduplicates content, natural language pro­cessing (as a type of predictive coding) employs artificial intelligence that adapts and modulates depending on inputs, rendering it fluid and […]

Introduction Professors Hanoch Dagan and Avihay Dorfman’s article Just Relationships is a fundamental reinterpretation of the moral ideals of large swaths of private law. Its significance, however, may go beyond even that broad ambition. In this Response, I suggest that Just Relationships is also an exemplar—perhaps par excellence—of an emergent form of critical discourse, which […]

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 […]

Introduction A central lesson of the financial crisis of 2007–2008 was that firms behaving like banks should be regulated like banks. Nonbanks that perform the same economic function as banks—so-called “shadow banks”—create the same risks and demand the same regulatory response as depository institutions with bank charters. The principal legislative reform passed in the wake […]

In Remedial Restraint in Administrative Law, Professor Nicholas Bagley argues that we should replace administrative law’s ordinary remand rule with a more restrained, context-specific standard of first assessing whether the parties challenging the action were actually prejudiced by agency error. He bases this argument in part on his belief that the states challenging the Obama Administration’s sweeping...

Introduction In his recent essay Between Scylla and Charybdis: Taxing Corporations or Shareholders (or Both), Dean David Schizer elucidates the complexities involved in choosing how to divide the tax burden on corporate profits between a tax paid by the corporation itself and one paid by its share­holders. He emphasizes the important point that strategic behavioral […]