I. Introduction Two kinds of remedies have traditionally been employed for breach of contract: legal relief and equitable relief. Legal relief normally takes the form of money damages. Equitable relief normally consists either of specific performance or an injunction – that is, the party in breach may be ordered to perform an act or to refrain from performing an act. In this article I will use a “consent theory of contract” to assess the choice between money damages and specific performance. (...) According to such a theory, contractual obligation is dependent on more fundamental entitlements of the parties and arises as a result of the parties' consent to transfer alienable rights. My thesis will be that the normal rule favoring money damages should be replaced with one that presumptively favors specific performance unless the parties have consented to money damages instead. The principal obstacle to such an approach is the reluctance of courts to specifically enforce contracts for personal services. The philosophical distinction between alienable and inalienable rights bolsters this historical reticence, since a right to personal services may be seen as inalienable. I will then explain why, if the subject matter of a contract for personal services is properly confined to an alienable right to money damages for failure to perform, specific enforcement of such contracts is no longer problematic. Finally, I shall consider whether the subject matter of contracts for corporate services is properly confined to money damages like contracts for personal services, or whether performance of corporate services can be made the subject of a valid rights transfer and judicially compelled in the same manner as contracts for external resources. (shrink)

Suppose you are on a commercial airplane that is flying at 35,000 feet. Next to you sits a man who appears to be sleeping. In fact, this man has been drugged and put upon the plane without his knowledge or consent. He has never flown on a plane before and, indeed, has no idea what an airplane is. Suddenly the man awakes and looks around him. Terrified by the alien environment in which he finds himself, he searches for a door (...) or window from which to make an escape. As luck would have it, he is seated right next to a window exit and he begins to pull the handle that will open the window. You are aware that opening the window exit at this altitude will cause the cabin to quickly depressurize and that this man, you, and probably several other passengers will be sucked out the window to your deaths. You desperately want to stop him from opening the window. Now assume that for some reason it is impossible to prevent him physically from performing the deadly act. Your only option is to rationally persuade him to leave the window exit alone. You cry out to him and, with both hands on the handles, he turns to face you and waits to hear what you have to say. What sort of argument would you make? (shrink)

In this provocative and engaging new book, Randy Barnett outlines a powerful and original theory of liberty structured by the liberal conception of justice and the rule of law. Drawing on insights from philosophy, political theory, economics, and law, he shows how this new conception of liberty can confront, and solve, the central societal problems of knowledge, interest, and power.

John Kaplan, The Hardest Drug: Heroin and Public Policy Chicago: The University of Chicago Press, 1983, xi + 247 pp.

This provocative book outlines a powerful and original theory of liberty structured by the liberal conception of justice and the rule of law. Drawing on insights from philosophy, political theory, economics, and law, he shows how this new conception of liberty can confront, and solve, the central societal problems of knowledge, interest, and power.

The problem of pursuing and achieving justice in a free society involves three different areas of analysis. First, the types of acts that are to be proscribed must be specified. Part of this analysis is methodological, requiring us to settle on the way in which such questions are to be decided. Second, once an offense has been defined, the remedy for its commission must be determined in a manner that is consistent with the theory of justice that defined the criminal (...) act. Finally, the structure of the legal order that will efficiently enforce these principles and at the same time not violate them must be explored. (shrink)

“Due process of law” is arguably the most controversial and frequently-litigated phrase in the American Constitution. Although the dominant originalist view has long been that Fifth and Fourteenth Amendment’s Due Process of Law Clauses are solely “process” guarantees and don’t constrain the “substance” of legislation at all, originalist scholars have in recent years made fresh inquiries into the historical evidence and concluded that there’s a weighty case for some form of substantive due process. In this Article, we review and critique (...) these findings employing our theory of good-faith originalist interpretation and construction. We begin by investigating the “letter” of the Due Process of Law Clauses — that is, the original meaning of their texts. Next, to develop doctrine by which this meaning can be implemented, we identify the clauses’ original function — their “spirit” — of barring arbitrary exercises of power over individuals that rest upon mere will rather than constitutionally proper reasons. We contend that the original letter and spirit of the “due process of law” in both clauses requires federal and state legislators to exercise their discretionary powers in good faith by enacting legislation that is actually calculated to achieve constitutionally proper ends and imposes a duty upon both state and federal judges to make a good-faith determination of whether legislation is calculated to achieve constitutionally proper ends. Finally, we confront hard questions concerning the scope of the states’ reserved powers, acknowledging the flaws in the “police-power” jurisprudence associated with the so-called “Lochner era” and we delineate an approach that will better safeguard all “person(s)” against arbitrary power. By so doing, we assist state and federal legislators by providing clarity concerning the constitutionally proper ends that federal and state legislators can pursue; aid state and federal judges by equipping them to review legislators’ pursuit of those ends; and help members of the public by enabling them to monitor the performance of their legislative and judicial agents. (shrink)

This is not another "law-and-econ" bashing symposium. Nor is the symposium's title intended to denigrate Chicago School law and economics any more than the term "Post-Keynesian economics" was intended to denigrate the work of John Maynard Keynes. Instead, this symposium marks the fact that many practitioners of law and economics have moved well beyond the stereotypes familiar to most legal academics. Rather than designating an entirely new school of thought, the term "Post-Chicago law and economics" refers to a new era (...) in which a variety of new questions about law and lawmaking is being asked and a variety of promising economic techniques is being used to answer them. Yet most legal academics who, like me, are not part of the law and economics movement are generally unaware of these changes. The purpose of this "Symposium on Post-Chicago Law and Economics" is to bring some of these new methods and questions to the attention of mainstream legal academics and others. The hope is that those who have shunned the economic analysis of law in the past may wish to reconsider their stance in light of what Post-Chicago law and economics has to offer. To facilitate this, the author uses this Foreword to summarize the new directions suggested by each of the symposium contributors, most of whom are practitioners of law and economics. (shrink)

We have been asked to consider how a "Constitution of Civic Virtue" might contribute to a "good society." To answer this question, we need to have some idea of what a good society might be, and we need to be able to articulate that idea. Certainly, we think we know a good movie when we see it, a good book when we read it, a good argument when we hear it, and a good idea when we have one, but we (...) are not sure we have a handle on what a good society is. Even what we think we know about good books, movies, arguments, and ideas gives us pause. For we are not sure we can always explain why we think a particular movie is good or a book is bad. And even when we can explain it, we find that many people disagree with us about such matters. Indeed, we, at times, even disagree with each other. By this we do not mean to suggest any skepticism about there being such a thing as a good book, a good film, a good wine, a good car, or even a good person. If there is one thing we think we know in this world, it is that there are good persons-quite amazingly good actually. Nor do we mean to deny that there may be such a thing as a good society, though we are not so confident about this. A lot depends on what is meant by those words. Having said this, we will set our skepticism aside and now offer a conception of a good society; but we no more expect everyone to agree with this conception then we expect them to agree with one of us that "The Tao of Steve" was a really good movie. (shrink)

This provocative book outlines a powerful and original theory of liberty structured by the liberal conception of justice and the rule of law. Drawing on insights from philosophy, political theory, economics, and law, he shows how this new conception of liberty can confront, and solve, the central societal problems of knowledge, interest, and power.

Religion and spirituality are important aspects of the lives of most psychotherapy clients. Unfortunately, many psychotherapists lack the training to effectively and ethically address these issues with their clients. At times, religious or spiritual concerns may be relevant to the reasons clients seek treatment, either as areas of conflict or distress for clients or as sources of strength and support that the psychotherapist may access to enhance the benefit of psychotherapy. This article reviews persistent ethical issues and dilemmas relevant to (...) providing psychotherapy to clients for whom issues of religion and spirituality are clinically relevant. Ethical considerations include assessment, advertising and public statements, informed consent, competence, boundary issues and multiple relationships, cooperation with other professionals, and how to effectively integrate religious and spiritual interventions into ongoing psychotherapy. A decision-making process is presented to guide psychotherapists in their clinical work with clients for whom religious and spiritual issues are salient or clearly linked to their presenting problems. (shrink)

Most, if not all, psychologists have served as teaching or research assistants during graduate school, been instructed by teaching assistants, or both. As both faculty and students themselves, graduate assistants are faced with several dilemmas for which they typically have little preparation or guidance. These issues are explored in the context of the existing literature on multiple relationships in academic settings. Recommendations are made for graduate assistants, their faculty supervisors or mentors, and administrators to proactively address and confront these challenges (...) in a manner consistent with the profession of psychology's ethics code and to minimize the potential for harm to those we are entrusted to teach. (shrink)

The present article is a continuation of the debate two sets of authors have been engaging in regarding one type of maturity mismatching: borrowing short and lending long. All four authors had agreed that this practice can set up the Austrian Business Cycle; the present author denies that BSLL would be a legitimate commercial interaction in the free society; Bagus and Howden continue to maintain that it would be licit. Our main criticism of Bagus and Howden is a reductio ad (...) absurdum: that this opens them up to the charge of embracing the doctrine of market failure; this is something highly problematic for the two of them, since all four contributors to this debate are well-known supporters of laissez faire capitalism. (shrink)

This book reinvigorates the philosophical treatment of the nature, purpose, and meaning of thought in today’s universities. The wider discussion about higher education has moved from a philosophical discourse to a discourse on social welfare and service, economics, and political agendas. This book reconnects philosophy with the central academic concepts of thought, reason, and critique and their associated academic practices of thinking and reasoning. Thought in this context should not be considered as a merely mental or cognitive construction, still less (...) a cloistered college, but a fully developed individual and social engagement of critical reflection and discussion with the current pressing disciplinary, political, and philosophical issues. The editors hold that the element of thought, and the ability to think in a deep and groundbreaking way is, still, the essence of the university. But what does it mean to think in the university today? And in what ways is thought related not only to the epistemological and ontological issues of philosophical debate, but also to the social and political dimensions of our globalised age? In many countries, the state is imposing limitations on universities, dismissing or threatening academics who speak out critically. With this volume, the editors ask questions such as: What is the value of thought? What is the university’s proper relationship to thought? To give the notion of thought a thorough philosophical treatment, the book is divided into in three parts. The focus moves from an epistemological perspective in Part I, to a focus on existence and values in higher education in Part II, and then to a societal-oriented focus on the university in Part III. All three parts, in their own ways, debate the notion of thought in higher education and the university as a thinking form of being. (shrink)

pt. 1. The American Counseling Association code of ethics ; The counseling relationship ; Confidentiality and privacy ; Professional responsibility ; Relationships with other professionals ; Evaluation, assessment, and interpretation ; Supervision, training, and teaching ; Research and publication ; Distance counseling, technology, and social media ; Resolving ethical issues -- pt. 2. Decision making and ethical practice in counseling. An ethical decision-making process for counselors;- Ethical issues regarding culture and diversity ; Confidentiality ; Exceptions to confidentiality ; Counseling suicidal (...) clients ; Boundaries and multiple relationships in counseling ; Competence ; Supervision ; Managed care ; Integrating technology into counseling practice ; Termination and abandonment ; Responding to subpoenas and court orders, lawsuits, and ethics complaints -- Appendix. Resources for counselors. (shrink)

Starting out : ethics issues in beginning a practice -- Clinical practice -- Documentation and record keeping -- Dealing with third parties and protecting confidentiality -- Financial decisions -- Staff training and office policies -- Advertising and marketing -- Continuing professional development -- Leaving a practice -- Closing thoughts.

A growing number of scientists have become interested in the relation between cognitive processes and their biological basis. This growth in interest has led to the creation of a subfield within psychology called cognitive neuroscience, which has now spawned its own scientific journal, a conference, and several graduate programs around the United States. One reason for recent enthusiasm is the development of several methods that allow researchers to observe brain activity in healthy, awake subjects while they perform cognitive tasks. These (...) methods, which are referred to as neuroimaging techniques, provide a unique window into the function of the human brain. (shrink)

For many young Americans, access to credit has become critical to completing a college education and embarking on a successful career path. Young people increasingly face the trade-off of taking on debt to complete college or foregoing college and taking their chances in the labor market without a college degree. These trade-offs are gendered by differences in college preparation and support and by the different labor market opportunities women and men face that affect the value of a college degree and (...) future difficulties they may face in repaying college debt. We examine these new realities by studying gender differences in the role of debt in the pivotal event of graduating from college using the 1997 cohort of the National Longitudinal Survey of Youth. In this article, we find that women and men both experience slowing and even diminishing probabilities of graduating when carrying high levels of debt, but that men drop out at lower levels of debt than do women. We conclude by theorizing that high levels of debt are one of the mechanisms that sort women and men into different positions in the social stratification system. (shrink)

We stipulate, arguendo, that fractional-reserve-demand deposit banking is per se fraudulent. We ask whether or not time deposit banking can also be illicit, and answer in the positive, if there is a mismatch between the time dimensions of deposits and loans. To wit, if an intermediary borrows short and lends long.

We stipulate, arguendo, that fractional-reserve-demand deposit banking is per se fraudulent. We ask whether or not time deposit banking can also be illicit, and answer in the positive, if there is a mismatch between the time dimensions of deposits and loans. To wit, if an intermediary borrows short and lends long.

In Barnett and Block (J Bus Ethics 88(4):711–716, 2009a), the present authors claim that borrowing short and lending long is fraudulent, and thus ought to be prohibited on legal grounds. Bagus and Howden (J Bus Ethics 90(3):399, 2009) take issue with our ethical analysis. The present paper is our response to these authors; it is an attempt to defend Barnett and Block (J Bus Ethics 88(4):711–716, 2009a) against the very interesting and important, although we believe, erroneous, criticisms of (...) Bagus and Howden (J Bus Ethics 90(3):399, 2009). (shrink)

In Barnett and Block :711–716, 2009a), the present authors claim that borrowing short and lending long is fraudulent, and thus ought to be prohibited on legal grounds. Bagus and Howden :399, 2009) take issue with our ethical analysis. The present paper is our response to these authors; it is an attempt to defend Barnett and Block :711–716, 2009a) against the very interesting and important, although we believe, erroneous, criticisms of Bagus and Howden :399, 2009).

Religion and spirituality are important aspects of the lives of most psychotherapy clients. Unfortunately, many psychotherapists lack the training to effectively and ethically address these issues with their clients. At times, religious or spiritual concerns may be relevant to the reasons clients seek treatment, either as areas of conflict or distress for clients or as sources of strength and support that the psychotherapist may access to enhance the benefit of psychotherapy. This article reviews persistent ethical issues and dilemmas relevant to (...) providing psychotherapy to clients for whom issues of religion and spirituality are clinically relevant. Ethical considerations include assessment, advertising and public statements, informed consent, competence, boundary issues and multiple relationships, cooperation with other professionals, and how to effectively integrate religious and spiritual interventions into ongoing psychotherapy. A decision-making process is presented to guide psychotherapists in their clinical work with clients for whom religious and spiritual issues are salient or clearly linked to their presenting problems. (shrink)

Monetary intelligence theory asserts that individuals apply their money attitude to frame critical concerns in the context and strategically select certain options to achieve financial goals and ultimate happiness. This study explores the dark side of monetary Intelligence and behavioral economics—dishonesty. Dishonesty, a risky prospect, involves cost–benefit analysis of self-interest. We frame good or bad barrels in the environmental context as a proxy of high or low probability of getting caught for dishonesty, respectively. We theorize: The magnitude and intensity of (...) the relationship between love of money and dishonest prospect may reveal how individuals frame dishonesty in the context of two levels of subjective norm—perceived corporate ethical values at the micro-level and Corruption Perceptions Index at the macro-level, collected from multiple sources. Based on 6382 managers in 31 geopolitical entities across six continents, our cross-level three-way interaction effect illustrates: As expected, managers in good barrels, mixed barrels, and bad barrels display low, medium, and high magnitude of dishonesty, respectively. With high CEV, the intensity is the same across cultures. With low CEV, the intensity of dishonesty is the highest in high CPI entities —the Enron Effect, but the lowest in low CPI entities. CPI has a strong impact on the magnitude of dishonesty, whereas CEV has a strong impact on the intensity of dishonesty. We demonstrate dishonesty in light of monetary values and two frames of social norm, revealing critical implications to the field of behavioral economics and business ethics. (shrink)

Robustness has long been recognized as an important parameter for evaluating game-theoretic results, but talk of ‘robustness’ generally remains vague. What we offer here is a graphic measure for a particular kind of robustness (‘matrix robustness’), using a three-dimensional display of the universe of 2 × 2 game theory. In such a measure specific games appear as specific volumes (Prisoner’s Dilemma, Stag Hunt, etc.), allowing a graphic image of the extent of particular game-theoretic effects in terms of those games. The (...) measure also allows for an easy comparison between different effects in terms of matrix robustness. Here we use the measure to compare the robustness of Tit for Tat’s well-known success in spatialized games (Axelrod, R. (1984). The evolution of cooperation . New York: Basic Books; Grim, P. et al. (1998). The philosophical computer: Exploratory essays in philosophical computer modeling . Cambridge, Mass: MIT Press) with the robustness of a recent game-theoretic model of the contact hypothesis regarding prejudice reduction (Grim et al. 2005. Public Affairs Quarterly, 19 , 95–125). (shrink)

Monetary Intelligence theory asserts that individuals apply their money attitude to frame critical concerns in the context and strategically select certain options to achieve financial goals and ultimate happiness. This study explores the bright side of Monetary Intelligence and behavioral economics, frames money attitude in the context of pay and life satisfaction, and controls money at the macro-level and micro-level. We theorize: Managers with low love of money motive but high stewardship behavior will have high subjective well-being: pay satisfaction and (...) quality of life. Data collected from 6586 managers in 32 cultures across six continents support our theory. Interestingly, GDP per capita is related to life satisfaction, but not to pay satisfaction. Individual income is related to both life and pay satisfaction. Neither GDP nor income is related to Happiness. Our theoretical model across three GDP groups offers new discoveries: In high GDP entities, “high income” not only reduces aspirations—“Rich, Motivator, and Power,” but also promotes stewardship behavior—“Budget, Give/Donate, and Contribute” and appreciation of “Achievement.” After controlling income, we demonstrate the bright side of Monetary Intelligence: Low love of money motive but high stewardship behavior define Monetary Intelligence. “Good apples enjoy good quality of life in good barrels.” This notion adds another explanation to managers’ low magnitude of dishonesty in entities with high Corruption Perceptions Index. In low GDP entities, high income is related to poor Budgeting skills and escalated Happiness. These managers experience equal satisfaction with pay and life. We add a new vocabulary to the conversation of monetary intelligence, income, GDP, happiness, subjective well-being, good and bad apples and barrels, corruption, and behavioral ethics. (shrink)