Contract, Promise, and Bankruptcy
This article argues that the moralist critique of contract law mischaracterizes the moral structure of promise and thus misunderstands the justification of contract law’s remedial architecture. Contra moralists, promissory rights are not property-like rights that vest a strong form of decision-making authority in the promisee. Promissory moral rights are simple moral rights—moral claims to performance, sometimes of modest weight, that can be outweighed by competing moral and prudential considerations much more readily than property rights can. Thus the common law’s remedial architecture is not amoral price system that encourages immoral yet efficient promise-breaking. Rather, it is a morally intelligent response to the structure and force of the moral rights that contract law characteristically addresses.
About the Law and Philosophy Workshop
The Law and Philosophy Workshop is jointly presented by the University of Michigan Philosophy Department and the School of Law. The public sessions feature presentations by leading or emerging voices in the fields of legal theory, moral or political philosophy to faculty members from the philosophy department, the law school, the history department, the Ross School of Business and the African-American Studies department, among others. The Workshop is open to the academic community.
Professors Scott Hershovitz ([email protected]) and Sarah Moss ([email protected]) organize the workshop. If you would like to receive workshop announcements, please contact Jenny Rickard ([email protected]) and ask to have your name added to the workshop’s email list.