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Wednesday, February 02, 2011

Charles Fried on the Individual Mandate (and a Plug for Our Contract Law Symposium)

Charles Fried of Harvard, former Massachusetts SJC justice and Solicitor-General in the Reagan administration (hence a long time Republican), testified before the Senate Judiciary Committee, excoriating Judge Vinson's constitutional analysis in the individual mandate case.  (HT Dan Farber via Facebook).  Obviously he does not agree with Randy Barnett and Elizabeth Foley.  But I leave constitutional matters to others like Howard.

Instead, I want to take the opportunity of this unexpected conjunction to segue into a plug for an event here in Boston at the Suffolk University Law School on Friday, March 25, 2011 in which you can hear both Professors Fried and Barnett, among others, but on a far less controversial topic:  contract theory.  This year marks the thirtieth anniversary of Professor Fried's Contract as Promise, the book I'm sure it's fair to say is the single most cited source for the thesis that what justifies contract law -- the state's intervention in the adjudication of disputes arising out of private and voluntary agreements -- is the upholding of the sanctity of promise as a moral obligation.  We will have four panels during the day -- it's going to be crowded, but Professor Fried was a hell of a draw! -- with papers and commentary by the aforementioned Professors Fried and Barnett, as well as T.M. Scanlon, Barbara Fried, Alan Schwartz, Daniel Markovits, Jean Braucher, Seana Shiffrin, Rachel Arnow-Richman, Carol Chomsky, Avery Katz, Richard Craswell, Juliet Kostritsky, Gregory Klass, John C.P. Goldberg, Curtis Bridgeman, Lisa Bernstein, Henry Smith, Roy Kreitner, Nathan Oman, and Jody Kraus.  The papers and proceedings will be published in a volume of the Suffolk Law Review.

There is no charge for attendance but we do ask you to register, which you can do online at Contract as Promise at 30:  The Future of Contract Theory, where you will also find links to the tentative program and  for accommodation at preferred rates. 

And I promise that March 25 will be a beautiful early spring day in Boston, with not a trace of snow.

Posted by Jeff Lipshaw on February 2, 2011 at 05:03 PM in Constitutional thoughts, Deliberation and voices | Permalink


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Fried's defense of the individual mandate's constitutionality is not news. Nothing he said departed from the mainstream Con Law prof party line.

What is big news: his statement (at the very start of his testimony) that he does harbor "doubts" about the constitutionality of the "medicare/medicaid compulsion" imposed on the states.

Posted by: Cleisthenes | Feb 2, 2011 6:23:30 PM

Isn't that what is meant by a "gratuitous" promise (i.e., sans consideration)? What if I rely on your promise and purchase a plane ticket and the weather conditions cause my flight to be cancelled (keep in mind that in this scenario I was PLANNING on attending the conference so as to enhance my standing and reputation among my peers, the effect of which would, in time, increase my overall economic utility).

Posted by: Patrick S. O'Donnell | Feb 2, 2011 6:16:04 PM

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