James Gordley

Equality in Exchange

This Article is about the ancient idea that in an exchange the value of what each party gives should be equal to the value of what he receives. Once, when university study of law meant primarily the study of an idealized Roman law, academic jurists regarded this idea as a basic principle of the law of contracts. They did not expect the law to remedy every unequal exchange, for to do so might be unsettling for commerce. But they regarded an unequal exchange as unjust in principle and thought that the law should provide a remedy where practical. In the nineteenth century, jurists confidently abandoned this principle. Some argued that equality in the values exchanged was a meaningless concept; others claimed that judicial remedies were an unwarranted interference with the judgment of the parties. In France, Germany, England, and the United States, unequal exchanges still sometimes were remedied, but those cases, rather than the ones in which a remedy was denied, came to be considered anomalies. Some jurists thought that no relief should be given in these cases; others defended relief by means of arguments that did not seem to depend upon the principle of equality in exchange. In the twentieth century, there has been a revival of interest in the problem of unjust exchange and in legal doctrines such as unconscionability in England and America, Wucher in Germany, and lMsion in France. Yet these doctrines are still defended in terms reminiscent of the nineteenth century. A remedy is appropriate, not because the disparity in values is itself an evil, but because that disparity is evidence of some other evil. According to some French jurists, the evil is fraud, mistake, or duress; according to certain Germans, it is the exploitation

Impossibility and Changed and Unforeseen Circumstances

Suppose that the parties are agreed on what performance each is to make but some event makes this performance impossible, or more difficult, or its market price drastically changes. These problems have been handled by two doctrines drawn from two different sources. Roman law developed a doctrine of impossibility to deal with impossible performances. Canon law developed one of changed circumstances to deal with unexpected events that made a performance of greater or lesser value to each party. In the medieval and early modern period, jurists developed philosophical and moral explanations of these doctrines. With time, these explanations were forgotten or simplified. Today, to many modern jurists, both doctrines seem to defy rational explanation. Nevertheless, if we look at the history of these doctrines, we will find that there is a much to be learned, both negatively and positively. Negatively, we will see, the jurists were never able to develop a good explanation of the Roman texts governing impossibility. Their explanation was that no one could be bound to do the impossible which simply did not square with the texts. On the positive side, they did develop a good explanation of the effect of unexpected circumstances. It was so good that I believe that if it is properly understood, it can also explain why relief is sometimes given when a performance is impossible.

The Common Law in the Twentieth Century: Some Unfinished Business

I. T ort ................................................................................................... 1821 A. Civil Law and Common Law .................................................... 1822 B. The Forms of Action and Legally Protected Interests ............... 1827 C. Intent, Negligence and Strict Liability ....................................... 1836 D. Rethinking Tort Law ................................................................. 1846 II. Contract ............................................................................................ 1847 El. Property ............................................................................................ 1859 A. Ownership .................................................................................. 1860 B. Practical Differences ................................................................. 1865 1. Future Interests .................................................................... 1865 2. Leases .................................................................................. 1867 3. Easements and Covenants ................................................... 1868 4. Rethinking the Law of Property .......................................... 1868 IV. Restitution ........................................................................................ 1869 Conclusion .............................................................................................. 1875

Is comparative law a distinct discipline

Jurists studying their domestic law ask what it is or should be. Comparative lawyers compare the law of different legal systems. Are these really distinct enterprises? Many domestic lawyers think so because they assume that their own cases, statutes and treatises are the only authorities relevant to the question of what their own law is. Italian cases or French statutes or German treatises could only be relevant to Italian or French or German law. They do not think this conclusion requires argument. They take it as obviously true. Comparative lawyers often react in the same way, in part because of their own experience. When they study how the law of different countries deals with a particular problem, they usually find that the decided cases involve different facts, and that the law is stated differently in statutes and treatises. They promptly assume that the law of France deals with the problem differently than the law of Germany. Here I will argue that the law of different legal systems may be much the same even if the decided cases and the authoritative statements made in statutes and treatises look different. To decide whether it is the same requires a careful analysis which should be made in the same way by a comparative and a domestic lawyer. To the extent that the law turns out to be the same, then it should be analyzed in the same way by both the comparative and the domestic lawyer. Their methods begin to diverge only when the law they are studying is genuinely different, and even then, their methods are interdependent. Neither can neglect the others conclusions. Let us consider, successively, the states in which a comparative or a domestic lawyer might find the law of a particular jurisdiction. One possible state is that of extreme confusion: there might be a mass of case law and no idea what rules the courts are following or what principles of justice or policy are guiding them. Even to describe the existing state of the law, neither the domestic nor the comparative lawyer can simply catalog the decided cases. Case law is law only to the extent it indicates or affects the way new cases will be decided. Merely to describe the law, the comparative and the domestic lawyer

Enforcing international cultural heritage law

Introduction I. THE INTERNATIONAL LEGAL ORDER 1. Plurality and Interaction of Legal Orders in the Enforcement of Cultural Heritage Law 2. Enforcement of Restitution of Cultural Heritage through Peace Agreements 3. The Role of International and Mixed Criminal Courts in the Enforcement of International Norms on the Protection of Cultural Heritage 4. Enforcement of International Cultural Property Norms in Time of War II. ENFORCEMENT BY DOMESTIC COURTS 5. Sovereign Immunity and the Enforcement of International Cultural Property Law 6. The Enforcement of Foreign Law: Reclaiming One Nations Cultural Heritage in Another Nations Courts 7. The Enforcement of Underwater Cultural Heritage Law by Domestic Courts 8. Enforcement of Criminal Sanctions in American State Courts III. ALTERNATIVE METHODS OF ENFORCEMENT: ARBITRATION, SOFT-LAW, DIPLOMACY, AND SETTLEMENTS 9. Plurality and Coordination of Dispute Settlement Methods in the Field of Cultural Heritage 10. Social Norms and Illicit Cultural Heritage 11. Practices of Collecting in American Museums 12. Enforcing Import Restrictions of Chinas Cultural Objects: The 2009 Sino-US Memorandum of Understanding

The jurists : a critical history

1. Ius civile: The Roman jurists 2. Ius commune: The medieval jurists 3. Ius et iustitia: The late scholastics 4. De iure civile in artem redigendo: The humanist ideal 5. Ius naturae et gentium: The jusnaturalists 6. Droit civil francais: The French altenative 7. Usus modernus pandectarum: The German-Dutch alternative 8. Mos geometricus: The coming of rationalism 9. Novus ordo: Positivism and conceptualism 10. Ubinam gentium sumus: After positivism and conceptualism

The Functional Method

We would like to evaluate the partition function Z = tr[e −βH ] (1) using the path integral. First of all, the trace of an arbitrary operator O over the Hilbert space can be taken in any basis,

The Future of European Contract Law on the Basis of Europe’s Heritage

Abstract Of greater help to the future of European contract law than any particular change in doctrines and rules would be a change in the prevailing view of why doctrines and rules should be accepted. In Europe, legal training, legal scholarship and the administration of justice are based on authoritative statements of the law by the legislatures or courts of single states. These statements rightly require deference when they are resolutions by a legislature of particular problems the legislature has actually considered. But the formulations of a high court and the provisions of civil codes are often no more than the best effort a court or a drafting committee made, often long ago, to resolve a knotty problem. If their formulation was imperfect, to follow it must sometimes lead to a wrong result. Courts must then either reach a wrong result or else pretend to apply a formula they are in fact disregarding. Moreover, to consider only the formulations of the courts and legislatures of a single state is to disregard the experience of other states, which may shed light on how a problem should be resolved. It would be better to base teaching, scholarship and the resolution of particular cases on the experience of all states in which similar problems have arisen.

Mere brilliance: the recruitment of law professors in the United States

Most discussion about the recruitment of law professors in the United States concerns affirmative action. Nearly everyone agrees that special efforts should be made to hire women and members of minority groups. The debate is over how far these efforts should go: should we merely look harder, or should we change our standards, or should we set aside a certain number of positions? Instead of addressing these questions, I will describe the process Americans often take for granted: recruitment of candidates who are neither women nor minorities. If we took it less for granted, we might better understand some of our difficulties with affirmative action. I was deeply impressed with the way we recruit when, as a new faculty member, I heard reports from the chairman of our appointments committee. He sounded like Mark Anthony summarizing the resume of Julius Caesar. The candidate had graduated in the top three percent of the class of a very prestigious law school, the sort of law school you only get into if you have been in the top four percent of the sort of undergraduate school you only get into if you have been in the top five percent of your high school class. There he served as president or high ranking officer of the student run law review. Enthusiastic recommendations had been elicited from several professors who had him for at least one class and from several others who knew of him by rumor and third-hand hearsay. Opinion was divided only as to whether he was the best graduate of the last three years or of the last five. After graduation, he had clerked for a prestigious federal judge and then for a justice of the United States Supreme Court. The former described the candidate as one of his best clerks ever, and the latter compared him favorably with three former clerks who had gone on to successful academic careers. The candidate was under scrutiny by prestigious law schools in the east, middle-west and west, all of which were expected to make him an offer. Oh, and he had also written something, a law review note on leveraged buy-outs or perhaps the Clean Air Act, which had drawn someones favorable comment. He had serious research interests though he was not yet sure what direction they might take. He

The Purpose of Awarding Restitutionary Damages: A Reply to Professor Weinrib

Professor Ernest Weinrib has argued that restitutionary damages must be understood, not as a deterrent to wrongful conduct, but as a requirement of commutative Justice. Professor Gordley agrees, but claims that a purposive understanding of commutative Justice can shed more light on restitutionary damages than the formal understanding of Professor Weinrib. A purposive understanding enables us to distinguish appropriation of a right from mere inteference, to distinguish true restitutionary damages from damages in lieu of a forced sale or hold-up; and to explain why, normally, it should not matter whether the defendant acted wilfully or innocently.