Stephen Bero (University of Surrey)

Mercy in Tort

2 November 2020 | 12:00 EST | 17:00 BST

Tort law systematically disadvantages the merciful. Admittedly this sounds odd, like saying that the rules of boxing disadvantage the merciful. But closer consideration reveals that tort law’s treatment of the merciful is a source of real unfairness and perversity. This is one dimension of a significant but overlooked problem of mercy in tort. This problem of mercy in tort is itself an illustration of a broader, fundamental problem that needs particularly to be reckoned with now, amid a wave of work emphasising how tort law advances relational values like equality and mutual accountability. The problem of mercy exposes a neglected downside: even if my equal standing is vindicated when I have institutional means to hold you accountable, other relational values — mercy, forgiveness, solidarity— are burdened when I must hold you accountable or else bear the cost of your mistake. We should avoid putting tort victims in this quandary if we can – and, at least in principle, we can.

Attendance is free but numbers are limited. Please register here.

Julian Jonker (University of Pennsylvania)

Unconscionability, Vulnerability, and Autonomy

7 December 2020 | 12:00 EST | 17:00 BST

Contract law’s doctrine of unconscionability is difficult to reconcile with a view of contract as autonomy-enhancing. The ability of a court to withhold contract enforcement seems at odds with respect for the choices of the contracting parties, and gives rise to the charge of paternalism. Indeed, unconscionability is typically defended as an external constraint upon contract that relies upon some value other than autonomy. This is in part because the moral charge of exploitation that underwrites most unconscionability claims is not well understood. I advance a proceduralist account of exploitation that explains the procedural emphasis of unconscionability doctrine. This proceduralist account does not implausibly claim that exploitation undermines consent or voluntariness, but does focus on the way in which the plaintiff’s options are narrowed before or during bargaining. In so doing, the account vindicates unconscionability doctrine as a natural part of an autonomy-enhancing contract law.

Attendance is free but numbers are limited. Please register here.