Jody S. Kraus

POLITICAL LIBERALISM AND TRUTH

Every theory of justice requires a first-order theory specifying principles of justice, and a second-order view explaining why those principles constitute the correct principles of justice. According to John Rawls, political liberalism is committed to the two principles of justice specified in its first-order theory, “justice as fairness.” Justice as fairness, according to Rawls, in turn presupposes the second-order view that justice is a political conception. A political conception of justice treats the principles derived from the fundamental ideas in the public political culture as the correct principles of justice. Political liberalism, however, nowhere offers a defense of the view that justice is a political conception. Indeed, it even strives to avoid the admission that it presupposes that justice is a political conception by stating only that it uses a political conception of justice, while allowing that justice might not actually be a political conception. As to the truth of its second-order presupposition, political liberalism chooses to remain agnostic. Rawls claims that political liberalism has no choice at all. To do otherwise, he argues, would lead to an internal contradiction.

Legal Design and the Evolution of Commercial Norms

The Uniform Commercial Code determines the content of most commercial law default rules by incorporating common merchant practices. The success of this incorporation strategy depends on the likely efficiency of evolved commercial practices. In this Article, I use the best available theory of cultural evolution to analyze how and why commercial practices evolve. This analysis confirms that the incorporation strategy is far superior to a system in which lawmakers rely predominantly on individual analysis and experimentation to design commercial law. But the analysis also demonstrates that common commercial practices, and the laws incorporating them, are unlikely to be optimal, in the sense that they cannot be improved at any cost. There is good reason, then, to explore supplemental strategies for enhancing the efficiency of individual commercial practices on a selected basis. The viability of such strategies will depend on their costs and likely success in improving on commercial practice.

The Jurisprudential Foundations of Corporate and Commercial Law

Contributors Introduction 1. Karl Llewellyn and the origins of contract theory Alan Schwartz 2. Economic efficiency and the ex ante perspective Daniel A. Farber 3. Constrained optimization: corporate law and the maximization of social welfare Lewis A. Kornhauser 4. Do trade customs exist? Richard Craswell 5. The uniformity norm in commercial law: a comparative analysis of common law and code methodologies Robert E. Scott 6. In defense of the incorporation strategy Jody S. Kraus and Steven D. Walt Index.

Decoupling Sales Law from the Acceptance- Rejection Fulcrum

1. BURDEN OF PROOF AND THE ACCEPTANCE-REJECTION FULCRUM .......... 135 A. Decoupling Burden-of-Proof fron Salvage Rules ................. 138 B. An Efficiency Analysis of the Codes Allocation of Burden of Proof .... 141 1. The Access-to-Evidence Rationale for Allocating Burden of Proof . . 142 a. Access to Evidence as Access to the Goods .............. 143 b. Access to Evidence as Access to Inspection Evidence ........ 144 2. Allocating Burden of Proof to the Cheapest Producer of Cost-Effective Evidence ............................... 146 3. Allocating Burden of Proof Against the Party Likely To Be Asserting a False Claim .......................... 148 4. Summary ........................................... 150 C. Conclusion ............................................ 152