Document Type

Article

Publication Title

Harvard Law Review Forum

Abstract

In my response, I undertake three interrelated tasks. The first is to make clear my own view on these substantive issues, and the second is to critique the alternative vision that Sherry tries to advance. The third is to call attention to the inability of progressive constitutionalists like Sherry to develop an alternative theory of their own — an inability Sherry herself acknowledges. At the outset, let me flag a point that I shall elaborate on later. As a matter of first principle I do take the position that a unified conceptual framework should apply to what are called economic and personal liberties, even if it were possible to articulate some hard-edged separation between them. The analytical origin of this position is that voluntary contracting, whether for the transfer of goods and services or the formation of long-term associations, works as well in the one domain as in the other. In each case, there are gains from trade among the parties that the law should seek to preserve. In each case, there is a risk that the transactions will be upset by problems of duress, fraud, or incompetence. In each case, there are dangers that the activities of the group members will impose some serious risk of loss on nonmembers from either the use of force, fraud, or the creation of monopoly power, all of which are fair targets of government action under a principled classical liberal constitution. Although the classical common lawyers thought in terms of justice, the basic outlines of their system correspond well to the dictates of economic efficiency that have gained such influence in the past half century.

First Page

145

Volume

128

Publication Date

2015

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