One of the central values of private ownership in liberal property thought is its freedom-guaranteeing function. The precise mechanism by which private property rights accomplish this guarantee, however, is frequently left unexplored. When theorists discuss the issue, they often identify property’s liberty-securing quality with the power that property confers upon its owner to exit from society into the protective cocoon of his stuff. In its most ambitious forms, this mechanism of “property as exit” draws strength from an implicit assumption that people are the sorts of beings that can withdraw from social relations into the isolation of their property. But there are reasons to think that withdrawal would be very costly for most people. As a consequence, the power of property to facilitate exit may be substantially weaker than is often assumed. Moreover, scholars’ affinity for property’s isolating function has obscured the degree to which property facilitates “entrance” by tying individuals together into social groups.
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Common Law Disclosure Duties and the Sin of Omission: Testing the Meta-theories
Since ancient times, legal scholars have explored the vexing question of when and what a contracting party must disclose to her counterparty, even in the absence of explicit misleading statements. This fascination has culminated in a set of claims regarding which factors drive courts to impose disclosure duties on informed parties. Most of these claims are based on analysis of a small number of non-randomly selected cases and have not been tested systematically. This article represents the first attempt to systematically test a number of these claims using data coded from 466 case decisions spanning over a wide array of jurisdictions and covering over 200 years.
The results are mixed. In some cases it appears that conventional wisdom is correct. For example, our data support the claim that courts are more likely to require disclosure of latent, as opposed to patent, defects. In addition, courts are more likely to require full disclosure between parties in a fiduciary or confidential relationship. On the other hand, our results cast doubt on much of the conventional wisdom regarding the law of fraudulent silence. Indeed, our results challenge ten of the most prominent theories that have been asserted to explain when courts will require disclosure. We find that courts are no more likely to impose disclosure duties when the information is casually acquired as opposed to deliberately acquired and that unequal access to information by the contracting parties is not a significant factor that drives courts to require disclosure. We do find, however, that when these two factors are present simultaneously courts are significantly more likely to force disclosure. Perhaps most interestingly, although it is generally understood that courts have become more likely to impose disclosure duties over time, we find that courts actually have become less likely to require disclosure over time.
Constitutional Calcification: How the Law Becomes What the Court Does
This Article articulates and explores an important distinction in constitutional law: the distinction between the requirements of the Constitution (“constitutional operative propositions”) and the rules that courts apply to decide whether those requirements have been violated (“constitutional decision rules”). The distinction has long been recognized, but until recently there have been few systemic investigations of its origin and consequences. The article first offers a sustained analysis of the factors that drive courts to create particular sorts of decision rules to enforce constitutional operative propositions. It then uses this account of the justification for different kinds of decision rules to explain and critique the Court’s jurisprudence in a number of different areas of constitutional law: the Commerce Clause, the Equal Protection Clause, the Free Exercise Clause, constitutional criminal procedure, and Section Five of the Fourteenth Amendment. Last, it explores a particular pathology that has thus far escaped attention. As doctrine becomes stable, the Court consistently begins to treat its decision rules as though they were operative propositions. This mistake has grave consequences, both for the soundness and coherence of doctrine and for the Court’s institutional role. By highlighting the consequences of confusing decision rules and operative propositions, the Article offers a fresh and useful perspective on controversial areas of constitutional law.