Law and Philosophy 10 (3):235 - 270 (1991)

Daniel Brudney
University of Chicago
This article starts by examining the appeal to hypothetical consent as used by law and economics writers. I argue that their use of this kind of argument has no moral force whatever. I then briefly examine, through some remarks on Rawls and Scanlon, the conditions under which such an argument would have moral force. Finally, I bring these considerations to bear to criticize the argument of judge Frank Easterbrook's majority opinion in Flamm v. Eberstadt.
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DOI 10.1007/BF00149798
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Hypothetical Consent and Justification.Cynthia A. Stark - 2000 - Journal of Philosophy 97 (6):313.
Consent and the Problem of Framing Effects.Jason Hanna - 2011 - Ethical Theory and Moral Practice 14 (5):517-531.
Replies. [REVIEW]Richard Joyce - 2008 - Philosophy and Phenomenological Research 77 (1):245-267.

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