Faculty Bibliography
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In The Choice Theory of Contracts, Hanoch Dagan and Michael Heller state that by arguing “that autonomy matters centrally to contract,” Contract as Promise makes an “enduring contribution ... but [its] specific arguments faltered because [they] missed the role of diverse contract types and because [it] grounded contractual freedom in a flawed rights-based view .... We can now say all rights-based arguments for contractual autonomy have failed.” The authors conclude that their proposed choice theory “approach returns analysis to the mainstream of twentieth-century liberalism--a tradition concerned with enhancing self-determination that is mostly absent in contract theory today.” Perhaps the signal flaw in Contract as Promise they sought to address was the homogenization of all contract types under a single paradigm. In this Article, I defend the promise principle as the appropriate paradigm for the regime of contract law. Along the way I defend the Kantian account of this subject, while acknowledging that state enforcement necessarily introduces elements--both normative and institutional--for which that paradigm fails adequately to account. Of particular interest and validity is Dagan and Heller's discussion of contract types, to which the law has always and inevitably recurred. They show how this apparent constraint on contractual freedom actually enhances freedom to contract. I discuss what I have learned from their discussion: that choice like languages, is “lumpy,” so that realistically choices must be made between and framed within available types, off the rack, as it were, and not bespoke on each occasion. I do ask as well how these types come into being mutate, and can be deliberately adapted to changing circumstances.
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Charles Fried, Defining and Constraining the Sovereign: “The Most Difficult of All Tasks,” in Sovereignty and the New Executive Authority 67 (Claire Finkelstein & Michael Skerker eds., 2018).
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Contracts are a part of our everyday life, arising in collaboration, trust, promise and credit. How are contracts formed? What makes a contract enforceable? What happens when one party breaks a promise?
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"First published in 1974, Charles Fried's Medical Experimentation is a classic statement of the moral relationship between doctor and patient, as expressed within the concept of personal care. This concept is then tested in the context of medical experimentation and, more specifically, the randomized controlled trial (RCT). Regularly referred to as a point of departure for ethical and legal discussions of the RCT, the book has long been out of print. This new, second edition includes a general introduction by Franklin Miller and the late Alan Wertheimer, a reprint of the 1974 text, and an in-depth analysis by Harvard Law School scholars I. Glenn Cohen and D. James Greiner which discusses the extension of RTCTs to social science and public policy contexts. The volume concludes with a new essay by Charles Fried that reflects on the original text and how it applies to the contemporary landscape of medicine and medical experimentation." -- Back cover.
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"Contract as Promise is a study of the philosophical foundations of contract law in which Professor Fried effectively answers some of the most common assumptions about contract law and strongly proposes a moral basis for it while defending the classical theory of contract. This book provides two purposes regarding the complex legal institution of the contract. The first is the theoretical purpose to demonstrate how contract law can be traced to and is determined by a small number of basic moral principles. At the theory level the author shows that contract law does have an underlying, and unifying structure. The second is a pedagogic purpose to provide for students the underlying structure of contract law. At this level of doctrinal exposition the author shows that structure can be referred to moral principles. Together the two purposes support each other in an effective and comprehensive study of contract law. This second edition retains the original text, and includes a new Preface. It also includes a substantial new essay entitled Contract as Promise in the Light of Subsequent Scholarship--Especially Law and Economics which serves as a retrospective of the work accomplished in the last thirty years, while responding to present and future work in the field." - Amazon
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"William Shakespeare is inextricably linked with the law. Legal documents make up most of the records we have of his life; trials, lawsuits, and legal terms permeate his plays. Gathering an extraordinary team of literary and legal scholars, philosophers, and even sitting judges, Shakespeare and the Law demonstrates that Shakespeare's thinking about legal concepts and legal practice points to a deep and sometimes vexed engagement with the law's technical workings, its underlying premises, and its social effects. Shakespeare and the Law opens with three essays that provide useful frameworks for approaching the topic, offering perspectives on law and literature that emphasize both the continuities and the contrasts between the two fields. In its second section, the book considers Shakespeare's awareness of common-law thinking and practice through examinations of Measure for Measure and Othello. Building and expanding on this question, the third part inquires into Shakespeare's general attitudes toward legal systems. A judge and former solicitor general rule on Shylock's demand for enforcement of his odd contract; and two essays by literary scholars take contrasting views on whether Shakespeare could imagine a functioning legal system. The fourth section looks at how law enters into conversation with issues of politics and community, both in the plays and in our own world. The volume concludes with a freewheeling colloquy among Supreme Court Justice Stephen G. Breyer, Judge Richard A. Posner, Martha C. Nussbaum, and Richard Strier that covers everything from the ghost in Hamlet to the nature of judicial discretion"--Jacket.
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A symposium article discussing the Justice Department and Solicitor General's Department decision not to defend the Defense of Marriage Act (DOMA).
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When the editors of the Emory Law Journal invited me to open this symposium on judging, they proposed that I reflect on the present Chief Justice’s widely debated statement of his conception of judging. John Roberts has been both praised and scorned for the metaphor he presented to the Senate Judiciary Committee at the hearing on his confirmation to be Chief Justice of the United States: “[I]t’s my job to call balls and strikes.” 1 It was an arresting use of language because, unlike so many metaphors that litter the discourse in and about the law—think of “sweeps too broadly” or “paints with a broad brush”—it is not so timeworn that, as George Orwell has noted, the original meaning has drained out of it and we are left only with a cliché, a ponderous way of saying something that could be said more directly. 2 No, here we catch a flash of a pitcher, a catcher, and standing behind him a distinctively shirted official, and a ball hurtling toward the batter’s head or far off, “wide of the mark”—another cliché, by the way. And just because the phrase is alive with resonance, it provokes—rather than deadens—thought.
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At the time Contract as Promise was written, there were two views of the subject in the field: a traditional, doctrinal and not particularly theorized view that saw contract as the law’s way of allowing private parties to create and enforce the terms that would govern transactions and long-term undertakings, and a burgeoning literature that saw contract law as a tool of social control imposing obligations on parties growing in part, but only in part, from dealings into which they had voluntarily entered. This latter view saw contract law disappearing into tort law, which is quite frankly a means for adjusting—on grounds of perceived fairness, social utility or redistribution—relations between parties. The former was associated with an individualistic ethos friendly to capitalism and free markets, the latter with a more socializing, communitarian ethos. The signal works of this latter movement were Grant Gilmore’s The Death of Contract and Patrick Atiyah’s The Rise and Fall of Freedom of Contract. Atiyah nicely captured the time’s anti-individualist and anti-capitalist tone. . .
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At first, few constitutional experts took seriously the argument that the Patient Protection and Affordable Care Act exceeded Congress's power under the commerce clause. The highly political opinions of two federal district judges — carefully chosen by challenging plaintiffs — of no particular distinction did not shake that confidence that the act was constitutional. This disdain for the challengers' arguments was only confirmed when the act was upheld by two highly respected conservative court of appeals judges in two separate circuits. But after the hostile, even mocking questioning of the government's advocate in the Supreme Court by the five Republican-appointed justices, the expectation was that the act would indeed be struck down on that ground. So it came as no surprise when the five opined the act did indeed exceed Congress's commerce clause power. But it came as a great surprise when Chief Justice John Roberts, joined by the four Democrat-appointed justices, ruled that the act could be sustained as an exercise of Congress's taxing power — a ground urged by the government almost as an afterthought. It was further surprising, even shocking, that Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito not only wrote a joint opinion on the commerce clause virtually identical to that of their chief, but that in writing it they did not refer to or even acknowledge his opinion. Finally surprising was the fact that Justices Ruth Bader Ginsburg and Stephen Breyer joined the chief in holding that aspects of the act's Medicaid expansion were unconstitutional. This essay ponders and tries to unravel some of these puzzles.
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Report of the Task Force on Federal Lobbying Laws section of Administrative Law and Regulatory Practice American Bar Association.
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Democratic legal systems and international human rights norms hold generally that torture can never be justified, however urgent the need. Many, but not all, thinkers about morality agree with this consensus. But the certainty breaks down in the face of catastrophic, “ticking bomb” hypotheticals, and lawyers and moralists retreat to arguments about the unreality of such hypotheticals and about the uncertainty as to whether torture is sufficiently likely to work to justify its use—all of which concedes that in principle torture is not always wrong. This Essay argues that it is always wrong—period. It then locates such an argument in a general moral landscape, showing how that and some other such absolutes are not as fanatic as they are made to appear. Rather, this argument is connected to a system of other moral concepts and commitments that we would be loath to unravel and does not depend on some supernatural guaranty that moral behavior will always have a happy outcome—in this world or the next: hence the title.
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The Supreme Court’s constitutional decisions have been a mixed blessing. Some of the Court’s most celebrated decisions have, in the long run, done more harm than good. Mapp v. Ohio, while it might have done a certain amount of good at the time, brought with it an automatic rule of exclusion that has grossly diverted attention from the guilt or innocence of the accused. Others, like Brown v. Board of Education and Lawrence v. Texas, were watershed moments in the development of American civil rights. But what made these decisions good or bad? My most important argument will be a negative one: it had nothing to do with the original intent of those who framed or ratified the constitutional provisions in question. The rise of originalism has brought with it an almost obsessive concern with history. Originalism seeks to substitute keenness of intellect for prudent judgment because the first is thought to be objective. The second is thought to be subjective, thereby subjecting us to the rule, not of laws, but of men. Yet the wise judge recognizes that the search for security and objectivity in history is a will-o’-the wisp. Wisdom, not historical rigor, is the touchstone of good judgment.
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"Can torture ever be justified? When is eavesdropping acceptable? Should a kidnapper be waterboarded to reveal where his victim has been hidden? Ever since 9/11 there has been an intense debate about the government’s application of torture and the pervasive use of eavesdropping and data mining in order to thwart acts of terrorism. To create this seminal statement on torture and surveillance, Charles Fried and Gregory Fried have measured current controversies against the philosophies of Aristotle, Locke, Kant, and Machiavelli, and against the historic decisions, large and small, of Jefferson, Lincoln, and Pope Sixtus V, among many others. Because It Is Wrong not only discusses the behavior and justifications of Bush government officials but also examines more broadly what should be done when high officials have broken moral and legal norms in an attempt to protect us. This is a moral and philosophical meditation on some of the most urgent issues of our time. 6 black-and-white illustrations." - Amazon
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I agree with the general tenor and many of the details of Professor Seana Shiffrin’s lucid and closely reasoned account of the relation between standard contract doctrine and the morality of promising. In this brief Response, I take up two points with which I disagree. First, Professor Shiffrin argues that contract doctrine, by making expectation damages rather than specific performance the general or default remedy for breach, diverges from what the morality of promising requires. Second, she makes a similar argument about contract doctrine’s imposition of the burden of mitigating damages on the disappointed promisee. In respect to these two arguments she repeats what I think is a frequently made but mistaken argument in the economic literature on promising, which uses these very examples to claim that contract doctrine is not and should not be rooted in the morality of promising, but rather in the economics of efficiency. Professor Shiffrin does not argue for that conclusion. Rather, she would move contract doctrine into closer alignment with what she considers to be the requirements of the morality of promising. I begin with a general account, one with which I do not suppose Professor Shiffrin would fundamentally disagree, of what I mean by morality and the morality of promising. Every society of any size and complexity, and certainly any such society that seeks the advantages of modernity — such as specialization of functions, accomplishment of time-extended tasks, provision for the future, and accumulation and transmission of knowledge — requires rules to guide the conduct of individuals and to specify the institutions and mechanisms by which those rules are identified, interpreted, enforced, and changed. I think it is an affectation and a quibble to deny these rules the name of law. And to do their work, such systems of rules must display a significant degree of regularity, comprehensibility, and stability — what Professor Lon Fuller has called “the internal morality of law,” a sobriquet that distracts attention from the fact that such a system of rules may be compatible with, and do service to, regimes of very great cruelty, injustice, and oppression. Response To I begin with a general account, one with which I do not suppose Professor Shiffrin would fundamentally disagree, of what I mean by morality and the morality of promising. Every society of any size and complexity, and certainly any such society that seeks the advantages of modernity — such as specialization of functions, accomplishment of time-extended tasks, provision for the future, and accumulation and transmission of knowledge — requires rules to guide the conduct of individuals and to specify the institutions and mechanisms by which those rules are identified, interpreted, enforced, and changed. I think it is an affectation and a quibble to deny these rules the name of law. And to do their work, such systems of rules must display a significant degree of regularity, comprehensibility, and stability — what Professor Lon Fuller has called “the internal morality of law,” a sobriquet that distracts attention from the fact that such a system of rules may be compatible with, and do service to, regimes of very great cruelty, injustice, and oppression.
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In this impassioned defense of liberty, renowned Harvard law professor Charles Fried argues that the seemingly unimpeachable goals of equality and community are often the most potent rivals of freedom. Declared a “spirited, sophisticated manifesto” by the New York Times Book Review, Modern Liberty demonstrates how the dense tangle of government regulations both supports and threatens our personal liberties. Armed with Fried’s insights, readers will be better able to defend themselves against those on both the left and the right who would, even with the best intentions, restrict their liberty.
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"In a few thousand words the Constitution sets up the government of the United States and proclaims the basic human and political rights of its people. From the interpretation and elaboration of those words in over 500 volumes of Supreme Court cases comes the constitutional law that structures our government and defines our individual relationship to that government. This book fills the need for an account of that law free from legal jargon and clear enough to inform the educated layperson, yet which does not condescend or slight critical nuance, so that its judgments and analyses will engage students, practitioners, judges, and scholars. Taking the reader up to and through such controversial recent Supreme Court decisions as the Texas sodomy case and the University of Michigan affirmative action case, Charles Fried sets out to make sense of the main topics of constitutional law: the nature of doctrine, federalism, separation of powers, freedom of expression, religion, liberty, and equality. Fried draws on his knowledge as a teacher and scholar, and on his unique experience as a practitioner before the Supreme Court, a former Associate Justice of the Supreme Judicial Court of Massachusetts, and Solicitor General of the United States to offer an evenhanded account not only of the substance of constitutional law, but of its texture and underlying themes. His book firmly draws the reader into the heart of today's constitutional battles. He understands what moves today's Court and that understanding illuminates his analyses." - Amazon
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In Making Tort Law: What Should Be Done and Who Should Do It, Harvard law professors Charles Fried and David Rosenberg note that the system of tort liability in the United States seeks to achieve a variety of aims: to compensate individuals injured by the risky business activities of large entities; to create incentives for those entities to take into account the dangers of their activities in the design of their processes, products, and services; and to allow individuals who feel powerless to make their grievances felt against large, impersonal, and sometimes unresponsive organizations. The authors contend, however, that our current tort system is almost certainly not the best possible way to achieve those goals. At best, they claim, compensation represents an uncertain, delayed, and expensive form of insurance. In addition, the disciplining effect on business is haphazard. Fried and Rosenberg assess the comparative advantages of courts and legislatures in taking the initiative of changing tort law to further the social objective of optimally managing accident risk. They conclude that the nature of the change involved–particularly the function that the change would serve and the means that would work best–strongly suggests that the legislature should play the major role in designing tort reform. And they contend that automobile and other nonbusiness-related accidents should be eliminated from the tort system.
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Walter Berns, Judith A. Best & Charles Fried, Should the Current Electoral College System be Preserved?, 80 Cong. Dig. 16 (2001).
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The experience of "bandit capitalism" or "tyrant capitalism" in postcommunist societies shows that markets cannot work properly without a community of trust and mutual respect. Such a community can be achieved only where there is a rule of law, applied by able and independent judges.
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Charles Fried, Comment: Constitutionalism, Privitization, and Globalization, 21 Cardozo L. Rev. 1091 (2000).
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Charles Fried, Uneasy Preferences: Affirmative Action in Retrospect, Am. Prospect, Sept./Oct. 1999, at 50.
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At a basic level, Americans want a society where race does not loom large. The political debate over affirmative action and the dangers of rolling back affirmative action in the courts are discussed.
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Charles Fried, Perfect Freedom, Perfect Justice, 78 B.U. L. Rev. 717 (1998).
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Charles Fried, Reflections on Crime and Punishment, 30 Suffolk U. L. Rev. 681 (1997).
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