Felipe Jiménez (USC Gould School of Law) has posted Against Deregulation (forthcoming, Notre Dame Law Review) on SSRN. Here is the abstract:
A response to Alan Schwartz and Simone Sepe’s Deregulating Contracts.
And here is an excerpt from the paper:
Despite the value of Schwartz and Sepe’s contribution, I must say I remain skeptical. Even assuming, arguendo, that the economic basis of their argument is correct, Schwartz and Sepe’s moral argument is far from conclusive. Unless one adopts an extremely narrow and implausible conception of political morality (which, in their own argument, Schwartz and Sepe correctly avoid), their case for deregulation is not persuasive. Indeed, the considerations of political morality that Schwartz and Sepe allude to fail to support, in my view (and despite the many virtues displayed by their ambitious and sophisticated argument), the case for deregulation.
Here is the structure of this response. In Part I, I offer a brief summary of Schwartz and Sepe’s argument. As I will note there, I will not discuss the argument that Schwartz and Sepe make regarding the inefficiency of mandatory procedural rules in contract law. Instead, I will only focus on the other normative arguments offered by Schwartz and Sepe. Thus, in Parts II, III, and IV, I go over three of the substantive arguments (outside of efficiency) offered by Schwartz and Sepe in favor of their proposal: distributive justice, autonomy, and rights. In Part V, I revisit an objection (based on Seana Shiffrin’s work on unconscionability) that Schwartz and Sepe themselves discuss. Finally, Part VI focuses on the social world that Schwartz and Sepe envisage arising if we adopt their suggested reform.
Highly Recommended!
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