The unconscionability doctrine in contract law enables a court to decline to enforce a contract whose terms are seriously one-sided, exploitative, or otherwise manifestly unfair. It is often criticized for being paternalist. The essay argues that the characterization of unconscionability doctrine as paternalist reflects common but misleading thought about paternalism and obscures more important issues about autonomy and social connection. The defense responds to another criticism: that unconscionability doctrine is an inappropriate, because economically inefficient, egalitarian tool. The (...) final part discusses more interesting but neglected questions about the scope of accommodation necessary to support fully meaningful autonomous activity. (shrink)

This article considers the principles that underlie the claim that some contracts are unconscionable and that such contracts should not be enforceable. It argues that it is much more difficult to explain unconscionability than is often supposed, particularly in cases where the contract is mutually advantageous or Pareto superior. Among other things, the article considers whether unconscionability is a defect in process or result, whether the gains in an unconscionable contract are disproportionate, whether there is a strong link (...) between the use of standard forms and unconscionability, and whether the principle of inequality of bargaining power can account for unconscionability. After rejecting several standard explanations of unconscionability, I consider several alternative ways in which it might be explained. (shrink)

This Article draws attention to a conceptual point that has been overlooked in recent discussions about the theoretical foundations of contract law. I argue that, rather than enforcing the obligations of promises, contract law concerns complaints against promissory wrongs. This conceptual distinction is easy to miss. If one assumes that complaints arise whenever an obligation has been violated, then the distinction does not seem meaningful. I show, however, that an obligation can be breached without giving rise to a valid complaint. (...) This Article illustrates the importance of this conceptual distinction by focusing first on the doctrine of substantive unconscionability. I claim that the doctrine can be best explained by the way in which a party who engages in exploitative behavior may lose her moral standing to complain. It is because such a party has lost her moral standing to complain that the law, through unconscionability doctrine, bars her from bringing a legal complaint. This explanation avoids the oft-issued charge of paternalism and it also offers benefits over an alternative state-oriented account developed recently by Seana Shiffrin. Using the conceptual distinction behind this account of unconscionability, this Article further argues that recent theoretical debates about the relationship between contract law and morality have been largely misconceived. Those debates have focused on whether contract law and morality impose parallel obligations. Once one appreciates the difference between imposing obligations and recognizing complaints, the comparison looks quite different. Contract law recognizes valid complaints against broken promises, much as morality recognizes moral complaints. (shrink)

This paper argues that the provider conscience regulation recently put into place in the USA is misguided. The rule is too broad in the scope of protection it affords, and its conception of what constitutes assistance in the performance of an objectionable procedure reveals that it is unworkable in practice. Furthermore, the regulation wrongly treats refusal of other reproductive services as on a par with conscientious objection to participation in abortion. Finally, the rule allows providers to refuse even to discuss (...) “objectionable” options with patients and serves to protect discriminatory refusals of medical care. For all of these reasons, this regulation is unwise. (shrink)

Essay exploring the extent to which certain agreements between the police and informants are an affront (both procedurally and substantively) to basic tenets of the liberal tradition in legal and political philosophy.

This book examines the most controversial issues concerning the use of pre-drafted clauses in fine print, which are usually included in consumer contracts and presented to consumers on a take-it-or-leave-it basis. By applying a multi-disciplinary approach that combines consumer's psychology and seller's drafting power in the logic of efficiency and good faith, the book provides a fresh and unconventional analysis of the existing literature, both theoretical and empirical. Moving from the unconscionability doctrine, it criticizes (and in some cases refutes) (...) its main conclusions based on criteria which are usually invoked to sustain the need for public intervention to protect consumers, and specifically related to Law (contract complexity), Psychology (consumer lack of sophistication criterion) and Economics (market structure criterion). It also analyzes the effects of different regulations, such as banning vexatious clauses or mandating disclosure clauses, showing that none of them protect consumers, but in fact prove to be harmful when consumers are more vulnerable, that is whenever sellers can exploit some degree of market power. In closing, the book combines these disparate aspects, arguing that the solution (if any) to the problem of consumer exploitation and market inefficiency associated with the use of contracts of adhesion in these contexts cannot be found in removing or prohibiting hidden clauses, but instead has to take into account the effects of these clauses on the contract as a whole. (shrink)

In Stovall v. Confimed.com, the Kansas Supreme Court held that an out-of-state medical doctor who sold a prescription drug to a Kansas minor over the Internet did not commit an unconscionable act under the Kansas Consumer Protection Act. The Shawnee Country District Court had enjoined the doctor from prescribing or dispensing prescription medicine within the state of Kansas, and the doctor appealed the injunction to the Kansas Supreme Court. The Supreme Court affirmed the district court's decision to grant injunctive relief, (...) but found no unconscionable conduct under the KCPA.The appellee, Washington physician Dr. Howard J. Levine, sold the sexual enhancement drug Viagra over the Internet through his online pharmacy. Neither the physician nor the online pharmacy was licensed to practice in Kansas. The purchasers were two Kansas residents, one of whom was a minor. Both purchased the drugs in a sting operation conducted by the Kansas Attorney General and received the drugs after completing an online application. (shrink)

The article protests against the usage of ethical codes by business organisations. It asserts that professionals are in a different situation to that of employees; and that with the latter ethical codes are used by management to ensure compliance and are devoid of ethical content. Ethical codes it is argued are part of management's control system in a time of flatter organisational structures with a far wider span of control. It is also asserted that the ambitions of some to utilise (...) ethical codes so that the business organisation is able to engender societal change is dangerous and likely, if successful, to return us to an age which we could not seriously desire to re-visit. (shrink)

“Unconscionable.” “Outrageous.” “Indefensible.” These are just some of the tamer descriptions for the billing practices of most hospitals, and also many physicians, that have recently come to the public's attention. Earlier this year, Time magazine published an extraordinary 24,000‐word exposé—the longest article it has ever published—detailing how even charitable hospitals routinely price‐gouge their patients.1 With characteristic flare for telling details, journalist Steven Brill documented ten‐fold markups of charges over costs at some prominent hospitals for common services like X rays and (...) lab tests, and one‐hundred‐fold mark‐ups on mundane supplies such as gauze pads and generic aspirin. Just as the buzz from Brill's article was abating, the Centers for Medicare & Medicaid Services released a comprehensive data set in May that galvanized local and national media across the country. This news tsunami caught hospital managers flat‐footed and tongue‐tied. Typical responses conceded that hospitals’ pricing practices are based neither on actual cost structures nor rational marketplace dynamics. Instead, hospitals attempted to deflect blame by noting that hardly anyone actually pays list prices, and they characterized their indefensible pricing as a symptom of a broken system that is beyond them to fix. There are two glaring faults in these standard defenses. (shrink)

What is the basis for arguing that a volunteer army exploits citizens who lack civilian career opportunities? How do we determine that a doctor who has sex with his patients is exploiting them? In this book, Alan Wertheimer seeks to identify when a transaction or relationship can be properly regarded as exploitative--and not oppressive, manipulative, or morally deficient in some other way--and explores the moral weight of taking unfair advantage. Among the first political philosophers to examine this important topic from (...) a non-Marxist perspective, Wertheimer writes about ordinary experience in an accessible yet philosophically penetrating way. He considers whether it is seriously wrong for a party to exploit another if the transaction is consensual and mutually advantageous, whether society can justifiably prohibit people from entering into such a transaction, and whether it is wrong to allow oneself to be exploited. Wertheimer first considers several contexts commonly characterized as exploitive, including surrogate motherhood, unconscionable contracts, the exploitation of student athletes, and sexual exploitation in psychotherapy. In a section outlining his theory of exploitation, he sets forth the criteria for a fair transaction and the point at which we can properly say that a party has consented. Whereas many discussions of exploitation have dealt primarily with cases in which one party harms or coerces another, Wertheimer's book focuses on what makes a mutually advantageous and consensual transaction exploitive and analyzes the moral and legal implications of such exploitation. (shrink)

While rich countries like the USA and UK are starting to vaccinate their populations against COVID-19, poor countries may lack access to a vaccine for years. A global effort to provide vaccines through the COVAX facility Accelerator) aims to distribute 2 billion vaccinations by the end of next year, but the USA has refused to join and even those rich countries that have joined are entering into bilateral deals with pharmaceutical companies to buy up the supply. Canada, for instance, has (...) already secured enough to vaccinate its entire population nine times over, and the USA, European Union, UK, Australia and Japan can vaccinate their populations between 2 and 8 x.1 Vaccine nationalism is neither ethically justified, nor even in rich countries’ long-term self-interest. No one deserves the luck of their birth and few have much control over their country of residence. So, when there are four ventilators per 12 million people in some low-income and middle-income countries, and people are being buried in cardboard boxes in mass graves, it is simply unconscionable to argue that wealthy countries can keep their vaccines to themselves or even help their populations first.2 Vaccine nationalism fails to respect basic human rights and the people who have them. Moreover, many argue that rich countries have contributed to global poverty through a shared and violent history of colonialism and oppression and profit from instituting, upholding and sustaining coercive rules that often exacerbate, rather than alleviate, global poverty.3 Be that as it may, putting basic health systems in place to ensure everyone can get vaccinated, not only against COVID-19 but a host of other terrible diseases, would better protect even the rich from …. (shrink)

Love, sex, and physical intimacy are some of the most desired goods in life and they are increasingly being sought on dating apps such as Tinder, Bumble, and Badoo. For those who want a leg up in the chase for other people’s attention, almost all of these apps now offer the option of paying a fee to boost one’s visibility for a certain amount of time, which may range from 30 min to a few hours. In this article, I argue (...) that there are strong moral grounds and, in countries with laws against unconscionable contracts, legal ones for thinking that the sale of such visibility boosts should be regulated, if not banned altogether. To do so, I raise two objections against their unfettered sale, namely that it exploits the impaired autonomy of certain users and that it creates socio-economic injustices. (shrink)

A prominent defence of a market in organs from living donors says that if we truly care about people in poverty, we should allow them to sell their organs. The argument is that if poor vendors would have voluntarily decided to sell their organs in a free market, then prohibiting them from selling makes them even worse off, at least from their own perspective, and that it would be unconscionably paternalistic to substitute our judgements for individuals' own judgements about what (...) would be best for them. The author shows that this ‘Laissez-Choisir Argument’ for organ selling rests on a mistake. This is because the claim that it would be better for people in poverty to sell their organs if given the option is consistent with the claim that it would be even better for them to not have the option at all. The upshot is that objections to an organ market need not be at all paternalistic, since we need not accept that the absence of a market makes those in poverty any worse off, even from their own point of view. The author goes on to argue that there are strong theoretical and empirical reasons for believing that people in poverty would in fact be harmed by the introduction of a market for live donor organs and that the harm constitutes sufficient grounds for prohibiting a market. (shrink)

Wars are large-scale conflicts between organized groups of belligerents, which involve suffering, devastation, and brutality unlike almost anything else in human experience. Whatever one’s other beliefs about morality, all should agree that the horrors of war are all but unconscionable, and that warfare can be justified only if we have some compel- ling account of what is worth fighting for, which can justify contributing, as individu- als and as groups, to this calamitous endeavour. Although this question should obviously be central (...) to both philosophical and politi- cal discussion about war, it is at the forefront of neither. In recent years, philosophical discussion of warfare has bloomed, but the debate has focused on whom we may kill, on the assumption that our aims are justified.1 Political debate, meanwhile, is more concerned with matters of prudence, international law, and public justification, than with reassessing what is worth fighting for. For wars of intervention to halt or prevent massive humanitarian crises, this gap is not so troubling. When warfare is the only means to prevent the mass killing or enslavement of the innocent, the purposes of military force are clear enough (though undoubtedly many other problems remain). The problem is more pressing, how- ever, for the justification of national defence.3 Although common-sense morality and international law view national defence as the paradigm case of justified warfare, grounding this consensus is surprisingly difficult.4 We typically believe that any state is justified in using lethal force to protect its territory against any form of uninvited military incursion by any other state. And yet we lack a good argument to explain why this should be so. In this chapter, I explain why one familiar and otherwise plausible approach to the justification of killing in war cannot adequately ground common-sense views of permissible national defence.5 Reductionists believe that justified warfare reduces to an aggregation of acts that are justified under ordinary principles of interpersonal morality.6 The standard form of reductionism focuses on the principles governing killing in ordinary life, specifically those that justify intentional killing in self- and other-defence, and unintended but foreseen (for short, collateral) killing as a lesser evil. Justified warfare, on this view, is no more than the coextension of multiple acts justified under these two principles. Reductionism is the default philosophical approach to thinking through the ethics of killing in war. It makes perfect sense to ask what principles govern permissible kill- ing in general, before applying them to the particular context of war. If it cannot deliver a plausible set of conclusions about when national defence is permitted, then we must either revise our beliefs about which conclusions count as plausible, or else face the significant challenge of developing a different theoretical model for justifying war- fare—an exceptionalist model, which views war as an exception to the regular moral landscape, to which principles apply which apply to nothing else but war.7 We must show, in other words, that there is something worth fighting for in wars of national defence, which is not engaged when we use force in any other context. The chapter proceeds as follows. Section 2.2 sets out the argument against reduc- tionism.8 Section 2.3 considers and rebuts one common response to the argument, which has often been thought sufficient grounds to disregard its conclusion. Section 2.4 then asks whether a modified reductionism would survive unscathed by the argu- ment. Finally, section 2.5 sets out some desiderata on a plausible exceptionalist alterna- tive. Section 2.6 concludes. (shrink)

The main question explored by the book is: How can cross-border access to human genetic resources, such as blood or DNA samples, be governed in such a way as to achieve equity for vulnerable populations in developing countries? The book situates the field of genomic and genetic research within global health and research frameworks, describing the concerns that have been raised about the potential unfairness in exchanges during recent decades. Access to and sharing in the benefits of human biological resources (...) are aspects not regulated by any international legal framework such as the Convention on Biological Diversity, which applies only to the exchange of plants, animals and microorganisms, as well as to associated traditional knowledge. Examples of genetic research perceived as exploitative are provided in order to illustrate the legal vacuum concerning the global governance of human genetic resources. The main conclusions drawn from the legal and ethical analysis are: - Benefit sharing is crucial in order to avoid the exploitation of developing countries in human genetic research. - With functioning research ethics committees, undue inducement is less of a concern in genetic research than in other areas of medical research (e.g. clinical trials). - Concerns remain over research involving indigenous populations; accordingly, recommendations are provided. In drawing these conclusions, the book addresses in detail a highly pressing topic in global bioethics and international law. In this regard, it combines bioethical arguments with jurisprudence, in particular with reference to the law of equity and the legal concepts of duress (coercion), unconscionable dealing, and undue inducement. (shrink)

Big Data enhances the possibilities for storing personal data extracted from social media and web search on an unprecedented scale. This paper draws on the political economy of information which explains why the online industry fails to self-regulate, resulting in increasingly insidious web-tracking technologies. Content analysis of historical blogs and request for comments on HTTP cookies published by the Internet Engineering Task Force illustrates how cookie technology was introduced in the mid-1990s, amid stark warnings about increased system vulnerabilities and deceptive (...) personal data extractions. In conclusion, online users today are left with few alternatives but to enter into unconscionable contracts about the extraction of their personal data when using the Internet for private purposes. (shrink)

What is the basis for arguing that a volunteer army exploits citizens who lack civilian career opportunities? How do we determine that a doctor who has sex with his patients is exploiting them? In this book, Alan Wertheimer seeks to identify when a transaction or relationship can be properly regarded as exploitative--and not oppressive, manipulative, or morally deficient in some other way--and explores the moral weight of taking unfair advantage. Among the first political philosophers to examine this important topic from (...) a non-Marxist perspective, Wertheimer writes about ordinary experience in an accessible yet philosophically penetrating way. He considers whether it is seriously wrong for a party to exploit another if the transaction is consensual and mutually advantageous, whether society can justifiably prohibit people from entering into such a transaction, and whether it is wrong to allow oneself to be exploited.Wertheimer first considers several contexts commonly characterized as exploitive, including surrogate motherhood, unconscionable contracts, the exploitation of student athletes, and sexual exploitation in psychotherapy. In a section outlining his theory of exploitation, he sets forth the criteria for a fair transaction and the point at which we can properly say that a party has consented. Whereas many discussions of exploitation have dealt primarily with cases in which one party harms or coerces another, Wertheimer's book focuses on what makes a mutually advantageous and consensual transaction exploitive and analyzes the moral and legal implications of such exploitation. (shrink)

A thorough examination of John Wesley’s writings will show that he was not a biblical literalist or infallibilist, despite his own occasional suggestions to the contrary. His most important principles for interpreting the Bible were: We should take its words literally only if doing so is not absurd, in which case we should “look for a looser meaning;” and “No Scripture can mean that God is not love, or that his mercy is not over all his works.” Eleven instances of (...) his not taking biblical texts literally are examined. His real view was something like this: Biblical language is infallibly and literally true if and only if it does not contradict more basic scriptures and is not absurd, that is, not construed literally when metaphorical, or not misleadingly metaphorical, or not oversimplified or exaggerated, or not culture bound, or not contrary to reason and experience, or not ethically unconscionable and unloving. (shrink)

When things go wrong with assisted reproduction we should look at what’s best for everyone in the particular circumstancesA RTBs, as we must now call them, are becoming more and more frequent. In the recent United Kingdom case Mr and Mrs A, a “white” couple, gave birth to twins described as “black”. The mix up apparently occurred because a Mr and Mrs B, a “black” couple, were being treated in the same clinic and Mrs A’s eggs were fertilised with Mr (...) B’s sperm. Mr and Mrs A love the twins and wish to keep them and the facts seem to be that Mrs A is the genetic mother of the twins but her partner is not the genetic father. Under English law, in assisted reproduction, the woman who gives birth to the child is the legal mother and this is true also in cases of surrogacy. I think there is no doubt in this case that English law has taken the right path and that it would be unconscionable to contemplate taking a child away from the woman who had undergone the risks and pains of pregnancy and childbirth and the bonding process that goes along with that when she wishes to keep the child particularly when there is no substantial and pressing evidence that she would be an unsafe parent. I argued this in my book The Value of Life4 and I think it is still true. So in this case justice, morality, and decency are served by confirming Mr and Mrs A as the parents of the children. Since in English law there is some ambiguity over paternity and how that is to be assigned and since Mr A is apparently not the genetic father, I think it is important …. (shrink)

In debates over the legitimacy of markets for live human organs, much hinges on the moral standing of desperate exchanges. Can people in desperate circumstances genuinely choose to sell their organs? Alternatively if they do choose to sell, then surely is it their choice? While sales are banned in most of the Western world due to fears that the poor will be exploited, advocates of these markets find such prohibition unconscionably paternalistic; and from the standpoint of contemporary liberal theory, paternalism (...) is anathema. Is it possible to provide grounds for blocking such desperate exchanges which are not at the same time paternalistic?In ‘Imposing Options on People in Poverty: the Harm of a Live Donor Organ Market', Simon Rippon argues that some options in the market do in fact harm. According to Rippon, if we focus on possible negative consequences of increasing an agent's options, one can develop an argument against human organ markets which is not paternalistic or focused on the idea of exploitation. Whether his account is, as stated, non-paternalistic is an open question, but his analysis of the implications of increased commercial options provides an illuminating and original critique of the human organ markets.Rippon labels his opponents' view the ‘Laissez-choisir Argument’ . According to LC, blocking exchanges …. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Democracy, Spirit, and RevitalizationWalter B. Gulick (bio)The assumptions of democracy as an associational ethos of vulnerable life are, first, that we don't already know how best to order our common life and, second, that we don't know what the abstract ideals of empathy, emancipation, and equity entail in the concrete.—Michael Hogue1In American Immanence: Democracy for an Uncertain World, Michael S. Hogue grounds his proposal for a political theology in (...) a critique of American exceptionalism and its supportive "redeemer symbolic."2 In the Anthropocene era, Hogue states, American exceptionalism "legitimates the extraction of diverse forms of value and justifies the externalization of diverse costs" (29) with unconscionable costs to the natural environment and international justice. As indicated in the passage quoted above, Hogue's reaction to the rigid assumptions supportive of American exceptionalism is to offer a humble acknowledgement of political fallibility coupled with what he terms "a theopolitics of resilient democracy" (184; see also 3–6).My concern in this essay is largely practical. I will focus on discerning what intellectual, emotional, and communal resources might be drawn upon to further develop and actually effect the needed changes that Hogue so ably points out. Relatedly, I will inquire into who the most likely candidates are to devote energy to the reconstruction of social structures and practices so that they express values that Americans at their best uphold. Finally, I will reflect upon the role that spiritual ideals and communal practices might play in energizing effective democratic action. [End Page 5]I. Hogue's Critical and Constructive TasksHogue's overriding interest is to outline an epistemic/axiological/environmental/political stance that does not give rise to the various sorts of injustices and dysfunctions that mark the Anthropocene era, especially our allegiance to policies that eventuate in what he calls "climate wickedness." The alternative vision he embraces develops pragmatic naturalism as a method of inquiry and exposition. His reflections are especially indebted to the thought of Dewey, James, and Whitehead (78–82). During a time when e-words are normally associated with forms of electronic communication, Hogue offers instead two trios of e-words with another sort of significance—one that signifies a stance he wishes to overcome and one that communicates what he hopes to achieve. Our current era is unfortunately in thrall, he says, to extraction, externalization, and exception, whereas what we should strive for is a society marked by empathy, emancipation, and equitability. Well put. He presupposes that democratic governance, deeply embedded in American history, ought to serve as the vehicle for achieving what the positive set of e-words promotes. To this end, Hogue quotes appreciatively from Dewey's article, "Democracy is Radical": Democracy "is radical because it requires great change in existing social institutions, economic, legal and cultural" (170). This understanding of democracy slumbers now; what might it take to reawaken it? And if reawakened, what changes might be made to establish the more nearly equitable political influence that is basic to the promise of democracy?Hogue, recognizing in good pragmatic fashion the importance of consequential change, states, "In contrast to foundationalist commitments to antecedents and precedents, pragmatic naturalism commits to a prospective concern with consequents" (80). Foundational commitments to antecedents may certainly impede needed change, but surely attention to the historical events and practices that gave rise to current problems is needed to avoid repeating previous errors. Hogue refers to Whitehead's vision of social symbolism, suggesting that "social change can be catalyzed by the improvised revision of existing symbolic repertoires or the innovative formation or subversive interjection of new symbols" (99). I'm not fully convinced by Whitehead's claim. I suspect that many of our social problems are rooted below the linguistic level in an array of affective issues that elude symbolic adjustment. New strategies are needed to counter the prevalence of fear and resentment in society as promoted for political and commercial reasons and tied to Hogue's strongly voiced recognition that we live in an uncertain world.Here is my understanding of how Hogue both frames our current social and cultural situation and what he says might begin to remediate these circumstances. [End Page... (shrink)

In their article, “The job of ‘ethics committees’”, Andrew Moore and Andrew Donnelly argue that current guidance documents provide that institutional research review committees ) perform two different and distinct functions, namely, a regulative review and an ethical review. They argue for separating those functions and for eliminating the ethics review role from IRBs. Instead, they want IRBs to focus exclusively on determining whether research proposals conform to governing regulations. In their argument, Moore and Donnelly correctly note that regulatory requirements (...) and ethical requirements can conflict. That point is correct, but hardly surprising. After all, regulations are general and the research proposals are specific, so an individual proposal may not conform to the general formulation of the rule and yet be consistent with ethics. Thus, a rule may generally be regarded as expressing a relevant moral consideration while providing a conclusion that does not appropriately reflect an ethical determination in the specific case. This inconsistency need not amount to what Moore and Donelly characterise as a ‘repellent’ or an ‘unconscionable’ review decision. Moore and Donnelly are also concerned that IRB decisions may differ from each other in their review of the same proposal. Again, they are correct in recognising that such inconsistent outcomes would be less likely if IRBs were to focus exclusively on whether proposals conformed to the regulations. That said, I reach the opposite conclusion. As I see it, IRBs present us with a good example of when the possibility of inconsistency is a relatively small consideration in comparison to the important values that are served by IRBs considering their protocol reviews in light of ethics and conforming to regulations. Allow me to explain. The authors and endorsers of research ethics …. (shrink)

Many liberal egalitarians support laws that prevent people from making exploitative and unconscionable contracts. These contracts may include low-wage labor agreements or payday loans, for example. I argue that liberal egalitarians should rethink their support for laws that limit the freedom to make these illiberal contracts, as long as the contracts are voluntary and do not violate people’s other enforceable rights. Paternalistic considerations cannot justify limits on illiberal contracts because they are not only likely to misfire; they also express condescending (...) and inegalitarian judgments of citizens. I then consider Seana Shiffrin’s argument that officials may avoid paternalism while still deterring illiberal contracts if they instead refuse to use public institutions to accommodate contracts that are contrary to the fundamental values on which those institutions are based. This argument encounters a dilemma. Officials may refuse to enforce illiberal contracts and ban private enforcement of illiberal contracts, but this strategy encounters the charges of paternalism it aimed to avoid. Or, officials may refuse to enforce illiberal contracts but tolerate private enforcement, but this approach would make the worst off members of society even more vulnerable and marginalized. Therefore, liberal egalitarians should support public enforcement of illiberal contracts because the alternatives are worse. (shrink)

This article aims to effectuate a paradigm shift in the way we view cases involving pure advantage-taking in contract formation. By ‘pure advantage-taking’ it is meant that D in some sense took ‘unfair advantage of’ a special bargaining weakness or vulnerability that D found ‘ready-made’ in P: D neither caused P’s relevant weakness or vulnerability nor otherwise was legally responsible for relieving it.Certain undue influence and unconscionable dealing cases (for example) fit this scenario perfectly, yet senior Commonwealth courts consistently assert (...) (or imply) that the doctrines of undue influence and unconscionable dealing are ordered, ostensibly exclusively, by a common law precept against interpersonal exploitation, and that judges are, when they invoke those doctrines, responding precisely to that particular concern. It is argued here, however, that the exploitation concept serves, or ought to be seen as serving, no necessary justificatory function in relation to state-assisted rescission or suppression of contracts objectively formed at common law. Instead, a principle of (what I shall call) ‘transactional neglect’ should be seen to eclipse and subsume the exploitation concept as the prevailing justification for interference with apparent contracts in pure ‘unfair advantage’ situations. The advocated shift is thus away from ‘exploitation’ towards ‘transactional neglect’—D’s corrective liability for failure to take reasonable precautions against the risk of foreseeable transactional harm to P, when P and D were, knowingly to D at the time, bargaining under conditions that make ‘exploitation’ possible. (shrink)

The article asks whether English professional football clubs have the potential to exploit non-English-speaking players during contract negotiations and signing meetings. We draw on evidence we gathered from a series of semi-structured interviews with football agents, former migrant players, and player liaison/welfare officers who currently work or have previously worked in English professional leagues. We also draw on normative insights from legal, moral, and applied ethical thought to develop a new, bespoke account of what should shock the conscience of the (...) court. We argue that because of language barriers, non-English-speaking players could end up signing unconscionable contracts, if not based on procedural or substantive unfairness, then potentially based on violations of their autonomy through deceptiveness. We also show that the current practice of players’ agents acting as ad hoc translators/interpreters raises serious ethical issues, not least lack of competency and impartiality. Following on from all this, we make a number of practical recommendations about how players’ representatives and clubs should conduct themselves, and what responsibilities they have to provide language support to non-English-speaking players in contract negotiations and signing meetings. (shrink)

Critics of the gaps in our nation’s health insurance decry the absence of a health insurance “system” and the resulting “patchwork” of private and public insurance that leaves so many Americans unprotected. There is no question that these gaps are unconscionable; but they are also no accident. They are the result of policy and political choices with substantial consequences for those who remain uncovered. In my view, the fundamental political barrier to universal coverage is that our success in insuring most (...) of the nation’s population has “crowded out” our political capacity to insure the rest. This paper will explain how we arrived at the mix of private and public insurance we now have, how that mix impedes efforts to achieve universal coverage, and how “crowd-out” affects strategy for improving coverage in the future. (shrink)

Death penalty debates appear to be intractable because what is obvious to one side is just as obviously not the case to the other. One side finds it unconscionable that a murderer can still be walk...

The author concentrates on the problem of dishonest approach to the responsibilities of the scientist and the scholar. She focuses on unconscionable uses of language in scientific publications resulting in making lies. The term ‘lie’ is so used as to refer to any utterance which is put forward under a pretence of making a scholarly statement, if that statement contains false sentences which have been put in deliberately. Different techniques of lying are reviewed: making blatantly untrue statements, concealment of the (...) truth, linguistic manipulations in descriptions and explanations aimed at producing false impressions. The author asks the question, who lies more often, the people who belong to the elite or those who remain in the social peripheries? The answer is qualified by a further distinction which separates moral peripheries from institutional peripheries. (shrink)

This essay invites Christian ethicists to engage in a mutually beneficial conversation with the secular law, particularly the common law. It argues that the common law's feature of narrative accountability provides a natural bridge to Christian ethics. It also points out contact points between the two fields regarding normative concepts of persons, actions, norms, and the common good. Finally, it illustrates the possibilities of a conversation between law and Christian ethics by delving into the leading case on the doctrine of (...) unconscionability, which permits courts to refuse to enforce contracts that shock the conscience. (shrink)

An idée maîtresse of the New Script (jinwen 今文) commentarial tradition is the notion of Kongzi as the “uncrowned king” (suwang 素王). Detractors of this commentarial tradition, which is based on the Qing Gongyang Commentary (Gongyang zhuan 公羊傳), customarily accuse its practitioners and proponents of doing unconscionable things to the classical texts. This chapter examines the deep exegesis of the jinwen commentarial tradition that revolves around the principal assertion that Kongzi, by rights, should have been the ruler, were it not (...) for inauspicious political circumstances. In order to understand the New Script originary image of Kongzi as the uncrowned king who was preoccupied with and excelled in statecraft, it presents a synthetic view of the main Gongyang discursive notions and contents, which can most systematically be found in He Xiu's 何休 (129‐182 ce) systematic description of the some categories (sanke 三科) and some points (jiuzhi 九旨) of Gongyang thinking. (shrink)

The current interest in Kant in the North American debate on criminal punishment arise from a deceptive hope: Kant seems as a sort of “antidote” useful to mitigate the results of correctional and merely intimidatory practice. Both the two current interpretations of his philosophy, for their typical post-modern statement, are yet improper and unproductive. Both Kant as a pioneer of so-called “limiting retributivism” and Kant theorist of “pure retributivism”, “purged” of the extreme application of the logic of jus talionis, do (...) offer us an “antidote” that is ineffective against the justified malaise which is rampant amongst the ranks of utilitarians on the other side of the Atlantic. Rather than a genuine medicine, it seems to be a sweetener, designed perhaps to make the unconscionable logic of power more acceptable, but certainly not to limit it. (shrink)

In this chapter, I argue that we can make sense of moral norms against consensual, adult incest by appealing to the value of familial relationships and the potential for sex to damage them. Viewing sex as unconscionable between family members helps to enable the loving intimacy normally associated with family relationships. Therefore, there is good reason for incest, even when consensual and between adults, to remain taboo. That being said, I argue that there is insufficient legal justification for all consensual, (...) adult incest to be criminalised. I examine four potential arguments in favor of consensual, adult incest being illegal, and conclude that none of them succeeds in justifying a total legal prohibition against it. (shrink)

This paper investigates the right of exit from religious associations. The liberal state has a compelling interest in overseeing exit, even if it implies some loss in religious group autonomy. Members should not be bound by rules they find unconscionable. They should be free to leave and able to do so. To enable exit, the paper advocates the use of membership contracts. Religious associations should issue a contract for members working for, residing in, or donating money to the association under (...) a regime of legal exemptions. The membership contract publicises the right of exit and offers a basis for negotiating and contesting its terms. It makes exit less “unthinkable” to members and helps tackle unreasonable economic costs to exit. (shrink)

Laws requiring autopsies have generated little controversy. Yet it is considered unconscionable to take organs without consent for transplantation. We think an organ draft is justified if mandatory autopsies are. We reject the following five attempts to show why a mandatory autopsy policy is legitimate, but organ conscription is not: (1) The social contract gives the state a greater duty to protect its citizens from each other than from disease. (2) There is a greater moral obligation to prevent murders than (...) disease-caused deaths because killing people is morally worse than allowing people to die. (3) Autopsies do not confiscate body parts, but organ transplants do. (4) The citizenry's knowledge that their organs are very likely to be taken will generate more anxiety than the remote possibility of a mandatory autopsy. (5) A religious conviction that one's organs will be needed in order to be resurrected is threatened by organ transplantation but not by autopsies that "return" body parts. (shrink)

The Challenge of the Exception is the key that unlocked the ideas of Carl Schmitt, a leading political theorist and jurist who influenced the thoughts of, among others, Hannah Arendt, Carl Joachim Friedrich, Otto Kirchheimer, Hans Morgenthau, Franz Neumann, and Leo Strauss. Professor Schwab clearly articulates Schmitt's key concepts and relates their centrality to politics and the state, to the political theory of liberalism, democracy and authoritarianism, and to international relations. When Schwab treats Schmitt's interpretations of constitutional questions, for example, (...) he shows how political theory in Germany is inextricably linked with constitutional law, legal theory, and the country's history. Not content to merely deal with Schmitt's profound contributions to twentieth-century thought, Schwab devotes considerable space to the unconscionable compromises that he made with the Third Reich. This, however, failed to help him become the political and legal theorist of Hitler's Germany. Schwab shows how the new Schmitt was suspect from the beginning and, by 1936, Schmitt the hunter had become Schmitt the hunted. Schwab's presentation of the multifaceted Carl Schmitt exposes the reader to a truly interdisciplinary excursion into the humanities and social sciences. (shrink)

In 2010, President Obama instructed the Presidential Commission for the Study of Bioethical Issues to enquire into research carried out by the US Public Health Service in Guatemala between 1946 and 1948. These studies entailed the deliberate inoculation of unconsenting prisoners, mental asylum patients and soldiers, with venereal disease. There was also evidence of deception and secrecy. The Commission’s report describes the research as heinous, egregious, unconscionable and unjustifiable, and identified those responsible as morally blameworthy. However, this article argues that (...) the Commission was deficient in its historical analysis, and failed to appreciate particular disease and temporal factors that might cast the research in a slightly different light. This is not to exculpate the researchers, but rather to critique the Commission’s analysis. The straightforward narrative woven by the Commission does not accurately reflect the muddy ethical waters of the time, nor the utilitarian ethos that pervaded particular research agendas. The creation of a facile story denies to us a proper understanding of why events unfolded as they did, and as a consequence a potential lack of comprehension of those elements that might prevent unethical and harmful research practices from being conducted in the future. (shrink)

In every legal system, consumer law indicates problems that it is supposed to solve: imbalance, unfairness and unconscionability. It raises important questions about a legal system’s pre-existing ability to deal with those problems. In a way, consumer law’s very presence in a legal system judges that system. When considering consumer law as a part of the system, an opposition arises between two kinds of discourse. First, there is a discourse, which constructs consumer law as a legal entity apart from (...) the others, sometimes leftist, founded on a defense of social justice or on market regulation. From this angle, consumer law might easily appear to be subversive. Second, there is a discourse, which results from the effort to accommodate consumer law within the legal tradition’s general private law. Under this discourse, rather than disrupting the core private law, consumer law is integrated into it. A gap may thus be noticeable between the initial intentions that sustain consumer law and the effects it produces. The author’s claim in this paper is that this gap, which generates ambivalence about consumer law, results from western legal systems’ main way of formalizing law in the contemporary era by writing. (shrink)

It has been estimated that U.S. companies with global business operations can reduce their U.S. tax bill by up to 10 percentage points if they reincorporate in a zero or low tax offshore jurisdiction. But this activity, at a time of national crisis following the September 11 terrorists' attacks and recent spate of corporate scandals, has received a less than sympathetic response from the U.S. media, ordinary taxpayers, shareholders and politicians as concerns are raised about the reduction of the tax (...) base and the lack of oversight and regulation in offshore centres. Offshore reincorporation has been condemned as immoral, unconscionable, dishonest and unpatriotic, accusations that cast doubt on the legitimacy of the companies concerned. In question is their right to conduct business in the U.S. and in particular, their right to still be viewed as American. Their legitimacy once bestowed so readily by the company's shareholders is now being questioned not only by shareholders but also the media, politicians, government regulators, pension funds and labour unions. Expatriate companies have been slow to respond to questions of their legitimacy, viewing their offshore move as a financial decision needing only the consent of their shareholders. However, times have changed and corporate legitimacy is now in the hands of all the company's stakeholders. Companies will need to explicitly consider the determinants of their legitimacy and the implications of the implied social contract under which they operate, to remain relevant in the days ahead. (shrink)

This chapter shows how libertarianism can be seen to be a moral theory that explains exceptions to earlier moral norms and principles and the chapter shows how various exceptions to libertarian principles, including necessity and unconscionability exceptions, can be seen to lead beyond libertarianism to contractarian theories of morality and justice. The chapteer raises a general problem for contractarian theories and shows how the problem applies to the theories of Rawls and Habermas. This sets the stage for the book’s (...) own meta-level consequentialist explanation of the exceptions in the next chapter. (shrink)

This chapter uses the main principle to explain why economic rights should be regarded as human rights. Property rights, contract rights, and other economic rights are a solution to the productive investment CAP. Property and contract rights are not defined a priori, but should be defined in a way that they will, as a practice, do the best job of equitably promoting life prospects. The chapter uses the main principle to explain the moral appropriateness of the contours of property rights (...) to both tangible and intangible property; exceptions to contracts, including unconscionability, implied warranties, strict liability, mandatory disclosure, bankruptcy; the replacement of caveat emptor with caveat venditor in win-win contracts; market economies; negative income tax; voluntary consent to economic and other transactions; prohibitions on slavery contracts; minimum wage legislation. The chapter contrasts his account with fair starting-point theories of justice, including Ronald Dworkin’s theory. He also contrasts his account with Richard Posner’s account of the common law in terms of economic efficiency. (shrink)

This article considers the recent Court of Appeal decision of Bank of Credit and Commerce International (Overseas) Ltd v Akindele. In this case, the Court of Appeal was required to consider a claim that the defendant should be held liable as a constructive trustee for dishonestly assisting in breaches of fiduciary duty, or knowingly receiving property traceable to a breach of fiduciary duty. The decision is important as the Court of Appeal proposed a new liability test for the claim of (...) knowing receipt. It was held that the test should no longer be based on knowledge. Instead, the court should now determine the claim on the basis of whether the defendant received the property unconscientiously. This article reviews the law, and suggests that the test of unconscientious receipt is preferable to the test of knowledge, as it has a flexibility which was not available under the knowledge‐based test. But, the notion of unconscientiousness, or unconscionability, is too subjective and requires some structure. In the article, economic analysis is used to give the concept of unconscionability the necessary structure. (shrink)

For today, the medical association came to common opinion, that a doctor-scientist cannot be higher than the universal values. At a decision-making, equally with the scientific interests, which, undoubtedly, will bring to development of the theoretical and practical medicine, a doctor must take into account moral values. The doctrine of the informed consent of patient that is examined as a necessary condition of any medical interference became ethic basis of experiment with participation of human. An observance of confidentiality of the (...) results of the studies is also very important. The present development of the biomedical knowledge supposes realization of human research in a good cause, after the conducted tests on the animals and the other models. A clinical test on human must take place only then, when the risk does not exceed the benefit. Carrying out of the biomedical studies is considered as illegal, unconscionable, amoral and even criminal action. If the regulations and the norms of the law are not observed, it entails penal offence. This article provides the basic foundations of medical activities rather moral standards of medical and research activity, which in the different periods underwent the changes dictated by moral requirements of an era and society are analyzed. (shrink)

This book is of fundamental importance in political philosophy as well as in theology, philosophy itself, and history. The fact that it lacks an Index is unconscionable. The book consists of some one hundred six pages of precious correspondence between Strauss and Voegelin, plus a reprinting of Strauss's famous essays "Jerusalem and Athens" and "The Mutual Influence of Theology and Philosophy," with Voegelin's "The Gospel and Culture" and "Immortality: Experience and Symbol." To complete these essays and letters are perceptive, often (...) brilliant, essays by James Wiser, Hans-Georg Gadamer, Stanley Rosen, Timothy Fuller, Ellis Sandoz, Thomas Pangle, and David Walsh. It would be difficult to find a more profound and stimulating book covering the whole history and understanding of faith and reason in Western intellectual history. (shrink)