Legal Secrets
Equality and Efficiency in the Common Law
9780226737799
Legal Secrets
Equality and Efficiency in the Common Law
Does the seller of a house have to tell the buyer that the water is turned off twelve hours a day? Does the buyer of a great quantity of tobacco have to inform the seller that the military blockade of the local port, which had depressed tobacco sales and lowered prices, is about to end? Courts say yes in the first case, no in the second. How can we understand the difference in judgments? And what does it say about whether the psychiatrist should disclose to his patient’s girlfriend that the patient wants to kill her?
Kim Lane Scheppele answers the question, Which secrets are legal secrets and what makes them so? She challenges the economic theory of law, which argues that judges decide cases in ways that maximize efficiency, and she shows that judges use equality as an important principle in their decisions. In the course of thinking about secrets, Scheppele also explores broader questions about judicial reasoning—how judges find meaning in legal texts and how they infuse every fact summary with the values of their legal culture. Finally, the specific insights about secrecy are shown to be consistent with a general moral theory of law that indicates what the content of law should be if the law is to be legitimate, a theory that sees legal justification as the opportunity to attract consent.
This is more than a book about secrets. It is also a book about the limits of an economic view of law. Ultimately, it is a work in constructive legal theory, one that draws on moral philosophy, sociology, economics, and political theory to develop a new view of legal interpretation and legal morality.
Kim Lane Scheppele answers the question, Which secrets are legal secrets and what makes them so? She challenges the economic theory of law, which argues that judges decide cases in ways that maximize efficiency, and she shows that judges use equality as an important principle in their decisions. In the course of thinking about secrets, Scheppele also explores broader questions about judicial reasoning—how judges find meaning in legal texts and how they infuse every fact summary with the values of their legal culture. Finally, the specific insights about secrecy are shown to be consistent with a general moral theory of law that indicates what the content of law should be if the law is to be legitimate, a theory that sees legal justification as the opportunity to attract consent.
This is more than a book about secrets. It is also a book about the limits of an economic view of law. Ultimately, it is a work in constructive legal theory, one that draws on moral philosophy, sociology, economics, and political theory to develop a new view of legal interpretation and legal morality.
378 pages | 6 x 9 | © 1988
Law and Legal Studies: Legal Thought
Political Science: Judicial Politics
Table of Contents
Preface
1. Framing Secrecy
Chapter One - The Sociology of Secrecy
The Trails of Five Secrets
The Concept of Secrecy
Forms of Secrecy
Justifications for Secrets
A Note on Lies and Half-Truths
Secrets and the Social Distribution of Knowledge
Chapter 2 - The Economic Analysis of Secrecy
An Economic Hypothesis
The Economics of Information: An Overview
The Law and Economics of Secrecy
Efficient Secrets
Chapter 3 - Secrecy and Strategy
Strategic Uses of Information
The Social Context of Strategic Secrets
The Costs of Secret-Keeping in a Reactive World
2. Developing a New Jurisprudence
Chapter Four - A Contractarian Theory of Law
Consent as a Basis for Legal Morality
How Consent Works
Those Who Choose
Scope of Consent: Holistic or Piecemeal
Negative and Positive Contractarianism
Direct Secrets
Serial and Shared Secrets
Contractarianism and Utilitarianism
Chapter Five - A Theory of Legal Interpretation: The Mutual Construction of Rules and Facts
On the Question of Texts
The Need for a Theory of Interpretation
The Interpretive Theory of the Economic Analysis of Law
A Theory of Legal Interpretation
Implications for the Study of Law
Coda: How Law Is Not Like Literature
3. Understanding Fraud
Chapter Six - The Nondisclosure Puzzle and Equal Access to Information
Where the Buyer Knows More than the Seller
Where the Seller Knows More than the Buyer
Equal Access as a Theory of the Doctrine of Nondisclosure
Comparing Contractarian and Economic Theories
Chapter Seven - Legally Relevant Facts in Fraud Cases
The Importance of Material Information
The Status of the Parties: Buyer and Seller
Equal or Superior Means of Knowledge
The Relation of the Parties to Each Other
The Nature of the Agreement
Special Confidence
The Conduct of the Knowledgeable Party
Chapter Eight - Comparing Economic and Contractarian Theories of Nondisclosure and Fraud
The Economic Analysis of Nondisclosure
Legitimate Nondisclosure and Equal Access to Information
4. Understanding Privacy
Chapter Nine - Secrecy and Privacy
Secrets in the Shadow of Privacy
Privacy Claims and Standing to Sue
Chapter Ten - Threshold Rules and Direct Secrets
Threshold Rules
Direct Secrets
Chapter Eleven - Serial Secrets
Overdisclosure
Identification
Confidential Relations
A Note on Secondhand Secrets
Chapter Twelve - Trade Secrets as Corporate Privacy
Secrecy
Investment
Confidential Relations
Independent Discovery
Chapter Thirteen - Comparing Economic and Contractarian Theories of Privacy
The Economic Theory of Privacy
A Contractarian Theory of Privacy
5. Understanding Implied Warranties
Chapter Fourteen - The Rule and Reality of Caveat Emptor in New York State, 1804-1900
Caveat Emptor as a Legal Puzzle
Core Applications of the Doctrine of Caveat Emptor
Food, Fraud, Horses, and Slaves: The Original Exceptions to the Caveat Emptor Rule
The Rise of Sales by Sample: 1825-1900
Another Shift in Sales Conventions: The Executory Contract, 1840-1900
Complex Products and the Knowledgeable Seller: 1860-1900
Economic and Contractarian Theories of Implied Warranty
6. Concluding
Chapter Fifteen - The Logic of Legal Secrets
Toward a Social Theory of Secrecy
Toward a Contractarian Theory of Law
Toward a Constitutional Jurisprudence
Appendix: Studying the Common Law: An Introduction for Social Scientists
References
Table of Cases
Index of Names
Subject Index
1. Framing Secrecy
Chapter One - The Sociology of Secrecy
The Trails of Five Secrets
The Concept of Secrecy
Forms of Secrecy
Justifications for Secrets
A Note on Lies and Half-Truths
Secrets and the Social Distribution of Knowledge
Chapter 2 - The Economic Analysis of Secrecy
An Economic Hypothesis
The Economics of Information: An Overview
The Law and Economics of Secrecy
Efficient Secrets
Chapter 3 - Secrecy and Strategy
Strategic Uses of Information
The Social Context of Strategic Secrets
The Costs of Secret-Keeping in a Reactive World
2. Developing a New Jurisprudence
Chapter Four - A Contractarian Theory of Law
Consent as a Basis for Legal Morality
How Consent Works
Those Who Choose
Scope of Consent: Holistic or Piecemeal
Negative and Positive Contractarianism
Direct Secrets
Serial and Shared Secrets
Contractarianism and Utilitarianism
Chapter Five - A Theory of Legal Interpretation: The Mutual Construction of Rules and Facts
On the Question of Texts
The Need for a Theory of Interpretation
The Interpretive Theory of the Economic Analysis of Law
A Theory of Legal Interpretation
Implications for the Study of Law
Coda: How Law Is Not Like Literature
3. Understanding Fraud
Chapter Six - The Nondisclosure Puzzle and Equal Access to Information
Where the Buyer Knows More than the Seller
Where the Seller Knows More than the Buyer
Equal Access as a Theory of the Doctrine of Nondisclosure
Comparing Contractarian and Economic Theories
Chapter Seven - Legally Relevant Facts in Fraud Cases
The Importance of Material Information
The Status of the Parties: Buyer and Seller
Equal or Superior Means of Knowledge
The Relation of the Parties to Each Other
The Nature of the Agreement
Special Confidence
The Conduct of the Knowledgeable Party
Chapter Eight - Comparing Economic and Contractarian Theories of Nondisclosure and Fraud
The Economic Analysis of Nondisclosure
Legitimate Nondisclosure and Equal Access to Information
4. Understanding Privacy
Chapter Nine - Secrecy and Privacy
Secrets in the Shadow of Privacy
Privacy Claims and Standing to Sue
Chapter Ten - Threshold Rules and Direct Secrets
Threshold Rules
Direct Secrets
Chapter Eleven - Serial Secrets
Overdisclosure
Identification
Confidential Relations
A Note on Secondhand Secrets
Chapter Twelve - Trade Secrets as Corporate Privacy
Secrecy
Investment
Confidential Relations
Independent Discovery
Chapter Thirteen - Comparing Economic and Contractarian Theories of Privacy
The Economic Theory of Privacy
A Contractarian Theory of Privacy
5. Understanding Implied Warranties
Chapter Fourteen - The Rule and Reality of Caveat Emptor in New York State, 1804-1900
Caveat Emptor as a Legal Puzzle
Core Applications of the Doctrine of Caveat Emptor
Food, Fraud, Horses, and Slaves: The Original Exceptions to the Caveat Emptor Rule
The Rise of Sales by Sample: 1825-1900
Another Shift in Sales Conventions: The Executory Contract, 1840-1900
Complex Products and the Knowledgeable Seller: 1860-1900
Economic and Contractarian Theories of Implied Warranty
6. Concluding
Chapter Fifteen - The Logic of Legal Secrets
Toward a Social Theory of Secrecy
Toward a Contractarian Theory of Law
Toward a Constitutional Jurisprudence
Appendix: Studying the Common Law: An Introduction for Social Scientists
References
Table of Cases
Index of Names
Subject Index
Awards
American Sociological Association: ASA-Distinguished Scholarly Publication Award (1999-2005)
Won