Law was central to the homophile movement, the main movement for queer rights between World War II and Stonewall. But examinations of this movement’s engagement with law have exclusively focused on public law. Private law has received virtually no attention. This Note corrects that oversight. It unearths instances in which groups advocating for queer rights invoked contract law during the 1950s and 1960s. These moments reveal contract law’s...
Private Law
Common private-ordering theories predict that merchants have an incentive to act honestly because if they do not, they will get a bad reputation and their future businesses will suffer. In these theories, cheating is cheating whether the cheat is big or small. But while reputation-based private ordering may constrain the big cheat, it does not necessarily constrain the small cheat because of the difficulty in discovering certain...
One of the most perplexing problems in private law is when and how to compensate victims for emotional harm. This Essay proposes a novel way to accomplish this remedial goal—a restoration measure of damages. It solves the two fundamental problems of compensation for emotional harm—measurement and verification. Instead of measuring the emotional harm and awarding the aggrieved party money damages, this Essay proposes that defendants pay...
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 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 […]