1 George Mason School of Law Contracts II Illegality: Perfectionism F.H. Buckley

When Are Promises Not Binding? 1.Perfectionism The Enforcement of Morals 2

When Are Promises Not Binding? 1.Perfectionism The Enforcement of Morals 2. Paternalism Vices of capacity 3

When Are Promises Not Binding? 1.Perfectionism The Enforcement of Morals 2. Paternalism Vices of capacity 3. Vices of Consent Fraud, Duress 4

When Are Promises Not Binding? 1.Perfectionism The Enforcement of Morals 2. Paternalism Vices of capacity 3. Vices of Consent Fraud, Duress 4. Unconscionability Substantive Unfairness? 5

6 Perfectionism The subject has immoral preferences which the perfectionist would reform As contractual enforcement benefits the parties, courts might enforce morality by refusing to enforce immoral agreements

7 Weve already seen an example of this

8 Thats an example of protecting third parties But this is about reforming the individual

Anti-perfectionism (neutralism) Mills harm principle: The only purpose for which power can rightfully be exercised over any member of a civilized community, against his will, is to prevent harm to others. Mill, On Liberty (1859) 9

John Stuart Mill & Harriet Taylor

The Film Version With Hugh Grant as JSM

The Film Version And Emma Thompson As Harriet Taylor

The Film Version Hi Mom. Hi Dad. Im home! And Jerry Mathers As The Beaver

14 Perfectionism defies stereotypes Right-wing perfectionism Drug laws Sexual immorality Same sex marriage Left-wing perfectionism Smoking Expansive civil rights laws Same sex marriage

15 Perfectionism in the Law Contracts rendered illegal by statute: Watts v. Malatesta Contracts illegal at common law: Baby M

Watts Ex turpi causa oritur non actio 16 A suitable case for perfectionism?

Watts 17 If a contract is illegal, whats the best contract law response? No remedy of any kind? Ex turpi causa oritur non actio In pari delicto, portior est conditio defendentis Or NY Penal Code § 994, which reverses this? How do the incentive effects cut?

Watts ΠΔΠΔ 18 $37,500 $37, Π sues under NY Penal Law § 994 to recover his losses. Can Δ offset against this claim his far greater losses to Π?

Watts In pari delicto, portior est conditio defendentis How did the In pari delicto maxim apply? Crane on the mischief rule. Was it fairly applied here? Cranes dissent 19

Watts Just how do professional gamblers collect their winnings? 20

Remember Nick the Chin? How do professional gamblers collect their winnings? 21 Im tinkin youse should pay what youse owe

A special case Contracts in restraint of trade Why do cartel arrangements tend to break down? 22

Hewitt Does marriage matter? Merely lacking legal formality: Is that how you see marriage? Does the state have an interest in promoting it? Is child support a separate issue? 23

Baby M 24 How do you imagine Mary Beth Whitehead?

Baby M Mary Beth Whitehead 25

Baby M Mary Beth Whitehead 26

Baby M The Sterns 27

Baby M 28 Why did the Whiteheads enter into the contract?

Baby M 29 Why did the Sterns not have their own children?

Baby M 30 What was the problem with the name Melissa?

So what did the court hold? 31

So what did the court hold? Contrary to statute Contrary to public policy 32

What about the following? A futures contract for a kidney? 33

What about the following? A futures contract for a kidney? A sale of a kidney? 34

What about the following? A futures contract for a kidney? A sale of a kidney? A sale of ones eyes? 35

So what did the court hold? Contrary to statute Contrary to public policy Sara Elizabeth Whitehead or Melissa Sterns? 36

Baby M Whos got the better c.v.? 37 Who is more likely to: subscribe to The New Republic? attend an Arthur Miller play? read a Jonathan Franzen novel?

Baby M 38 Was it relevant that most of his family had been destroyed in the Holocaust.

Baby M 39 Did Whiteheads extreme attachment to her daughter render her an unfit mother?

Surrogacy Contracts Should they be enforced? Note that the industry has expanded, AFTER Baby M. Are there ground rules youd adopt to make it more palatable? Is this merely about the surrogates capacity to contract? 40

41 Two kinds of Perfectionism Private Perfectionism overrules personal choice to make the subject a better person Social Perfectionism overrules personal choice to protect third parties from moral externalities

42 Social Perfectionism Mills harm principle: The only purpose for which power can rightfully be exercised over any member of a civilized community, against his will, is to prevent harm to others. Mill, On Liberty (1859) But what counts as a harm?

43 Physical spillovers

44 Moral spillovers? Couture, Les Romains de la decadence, 1847

45 Social Capital Physical Capital

46 Social Capital Physical capital Human Capital Intelligence and health Private virtue, good character

47 Social Capital Physical capital Human Capital Social Capital Do you have any preferences about your neighbors and fellow citizens? Republic of Defection: Edward Banfields Montegrano, The Moral Basis of a Backward Society

Whats wrong with hog-dog fights? 48

Whats wrong with hog-dog fights? 49

50 Social Capital What were the externality concerns in Baby M? Was it simply the child, as the casebook suggests? Are surrogate parents any worse than natural parents? Posner and Landes on baby-selling

51 So what kind of social virtues would one look for? The Bourgeois Virtues Honesty Fidelity Prudence Moderation Reciprocity The Romantic Virtues Transcendence, Passion

52 How to Protect Social Capital? The Hart-Devlin Debate Lord Devlin, The Enforcement of Morals H.L.A. Hart, Law, Liberty and Morality

53 How to Protect Social Capital? The Hart-Devlin Debate Lord Devlin, The Enforcement of Morals H.L.A. Hart, Law, Liberty and Morality Devlins Disintegration Thesis Just how does a society disintegrate Is change always for the worst?

54 Neutralism and Slippery Slopes The Battle of the Slippery Slopes. The Perfectionist fears that a slight change in moral habits will lead to the Decline and Fall of our civilization. The neutralist fears that any kind of Perfectionism will lead to Holy Fascism.

55 Can the state be trusted to legislate morals? No one expects the Spanish Inquisition!

56 Can the state be trusted to legislate morals? President Johnson signs the 1964 Civil Rights Act

57 Do laws have expressive effects? President Johnson signs the 1964 Civil Rights Act

58 Can the state be trusted to legislate morals? Jim Crow laws were legislated by the states

59 George Mason School of Law Contracts II Paternalism F.H. Buckley