Papers by Nicolas Cornell
This essay defends the possibility of preemptively forgiving. That is, I
defend the claim that on... more This essay defends the possibility of preemptively forgiving. That is, I
defend the claim that one can forgive an action before the action has
taken place.
Smart contracts are self-executing digital transactions using decentralized cryptographic mechani... more Smart contracts are self-executing digital transactions using decentralized cryptographic mechanisms for enforcement. They were theorized more than twenty years ago, but the recent development of Bitcoin and blockchain technologies has rekindled excitement about their potential among technologists and industry. Startup companies and major enterprises alike are now developing smart contract solutions for an array of markets, purporting to offer a digital bypass around traditional contract law. For legal scholars, smart contracts pose a significant question: Do smart contracts offer a superior solution to the problems that contract law addresses? In this article, we aim to understand both the potential and the limitations of smart contracts. We conclude that smart contracts offer novel possibilities, may significantly alter the commercial world, and will demand new legal responses. But smart contracts will not displace contract law. Understanding why not brings into focus the essential role of contract law as a remedial institution. In this way, smart contracts actually illuminate the role of contract law more than they obviate it.
The law contains a diverse range of doctrines — " slayer rules " that prevent murderers from inhe... more The law contains a diverse range of doctrines — " slayer rules " that prevent murderers from inheriting, restrictions on trade in " conflict diamonds, " the Fourth Amendment's exclusion of evidence obtained through unconstitutional search, and many more — that seem to instantiate a general principle that it can be wrong to profit from past harms or misconduct. This Article explores the contours of this general normative principle, which we call the wrongful benefit principle. As we illustrate, the wrongful benefit principle places constraints both on whether anyone should be permitted to exploit ethically tainted goods, and who may be permitted to profit or otherwise benefit from past wrongful or harmful conduct. We test the boundaries of the principle by examining its application to the pressing and complex case of Arctic drilling. The burning of fossil fuels and the resulting melting of Arctic ice have, ironically, opened access to oil fields in the Arctic that were previously inaccessible. In our view, the historical cause of this opportunity is normatively significant to questions about what oil extraction should be permitted in the Arctic in the future. We conclude by suggesting the kind of legal responses — both domestic and global — that can incorporate the wrongful benefit principle.
Forward to Penn Undergraduate Law Journal, Volume 2.
An examination of the application of defens... more Forward to Penn Undergraduate Law Journal, Volume 2.
An examination of the application of defense of others doctrine to cover non-human animals.
This Article draws attention to a conceptual point that has been overlooked in recent discussions... more This Article draws attention to a conceptual point that has been overlooked in recent discussions about the theoretical foundations of contract law. I argue that, rather than enforcing the obligations of promises, contract law concerns complaints against promissory wrongs. This conceptual distinction is easy to miss. If one assumes that complaints arise whenever an obligation has been violated, then the distinction does not seem meaningful. I show, however, that an obligation can be breached without giving rise to a valid complaint. This Article illustrates the importance of this conceptual distinction by focusing first on the doctrine of substantive unconscionability. I claim that the doctrine can be best explained by the way in which a party who engages in exploitative behavior may lose her moral standing to complain. It is because such a party has lost her moral standing to complain that the law, through unconscionability doctrine, bars her from bringing a legal complaint. This explanation avoids the oft-issued charge of paternalism and it also offers benefits over an alternative state-oriented account developed recently by Seana Shiffrin. Using the conceptual distinction behind this account of unconscionability, this Article further argues that recent theoretical debates about the relationship between contract law and morality have been largely misconceived. Those debates have focused on whether contract law and morality impose parallel obligations. Once one appreciates the difference between imposing obligations and recognizing complaints, the comparison looks quite different. Contract law recognizes valid complaints against broken promises, much as morality recognizes moral complaints.
Nudging operates by shaping the so-called architecture of our choices. This can happen in many wa... more Nudging operates by shaping the so-called architecture of our choices. This can happen in many ways, but often it involves altering how we perceive our choices by providing us with information or cues. For example, cleverly engineered road signs, financial disclosure statements, and nutrition labeling can prompt people to drive more safely, save more money, and eat healthier. These nudges operate by inserting themselves into our perceptual experience. We see—and consequently think about—information that we otherwise would not. In this paper, I argue that this form of nudging can create significant impact on aesthetics. Appreciating aesthetic value, whether it be beautiful natural scenery or an enticing meal, often depends on experience uninterrupted by other thoughts. And, even in less obviously aesthetic contexts, nudges can clutter or skew our experience. The irony here is that nudging—which purports to eschew coercion—ends up forcing us to think in certain ways and preventing us from experiencing the world as we might otherwise. I conclude that, at the very least, considerations of aesthetics and freedom of thought should figure more in our decisions about when to nudge and when not to nudge.
This Article describes a jurisprudential puzzle—what I call the puzzle of the beneficiary’s barga... more This Article describes a jurisprudential puzzle—what I call the puzzle of the beneficiary’s bargain—and contends that adequately resolving this puzzle will require significant revisions to some of the ways that we think about contract law. The puzzle arises when one party enters into two contracts requiring the same performance, and the promisee of the second contract is the third-party beneficiary of the first. For example, a taxi driver contracts with a woman to transport her parents from the airport next week, and then the driver separately enters a contract with the parents to transport them when the time comes. Is the second contract valid and enforceable, or does it fail for lack of consideration? This specific question—on which courts have split—implicates several important contract law doctrines. Moreover, it highlights a deep tension in our modern understanding of contractual obligation. This Article argues that adequately resolving the puzzle necessitates a general reconsideration of the relationship between rights and liability in contract law. Surprisingly, the best solution requires abandoning the foundational understanding that contract liability arises out of breach of a promisee’s right to performance. The relatively specific puzzle thus offers a lens through which to examine general concepts of modern contract law.
This Article examines the normative significance of paternalism. That an action,
a law, or a poli... more This Article examines the normative significance of paternalism. That an action,
a law, or a policy is paternalistic generally counts against it. This Article
considers three reasons why this might be so—that is, three theories about
what gives paternalism its normative character.
This Article’s claim is that the two most common explanations for paternalism’s
negative character are mistaken. The first view, which underlies the recent
work by Professors Thaler and Sunstein, maintains that paternalism is
negatively charged because it involves coercive interference with people’s
choices. This approach proves inadequate, however, because more coercive actions
can be a less objectionable form of paternalism, and vice versa. Paternalism’s
impermissibility varies independently from its coerciveness. The second
common theory of paternalism focuses on the distinctive intention behind paternalistic
interference. But this approach is ill suited to explain the normative
significance of paternalism because permissibility is not generally dependent
on intention.
This Article sketches a third conception of paternalism—one that locates its
normative significance in neither coercion nor motive. This approach maintains
that paternalism involves expressive content. Paternalism expresses the
idea that the actor knows better than the person acted upon; it implies that the
other party is not capable of making good judgments for herself. The normative
significance of paternalism derives from the typical impermissibility of
making such an expression. That is, paternalism is wrong in the same way
that an insult is wrong. This understanding of paternalism’s normative significance
provides the tools to make the charge of paternalism leveled against
some policies intelligible, and conversely to explain why other paternalistic
policies are permissible.
Book Reviews by Nicolas Cornell
Occasionally, we receive questions regarding the selection of books reviewed in the Journal of Ec... more Occasionally, we receive questions regarding the selection of books reviewed in the Journal of Economic Literature. A statement of our guidelines for book selection might therefore be useful.
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Papers by Nicolas Cornell
defend the claim that one can forgive an action before the action has
taken place.
An examination of the application of defense of others doctrine to cover non-human animals.
a law, or a policy is paternalistic generally counts against it. This Article
considers three reasons why this might be so—that is, three theories about
what gives paternalism its normative character.
This Article’s claim is that the two most common explanations for paternalism’s
negative character are mistaken. The first view, which underlies the recent
work by Professors Thaler and Sunstein, maintains that paternalism is
negatively charged because it involves coercive interference with people’s
choices. This approach proves inadequate, however, because more coercive actions
can be a less objectionable form of paternalism, and vice versa. Paternalism’s
impermissibility varies independently from its coerciveness. The second
common theory of paternalism focuses on the distinctive intention behind paternalistic
interference. But this approach is ill suited to explain the normative
significance of paternalism because permissibility is not generally dependent
on intention.
This Article sketches a third conception of paternalism—one that locates its
normative significance in neither coercion nor motive. This approach maintains
that paternalism involves expressive content. Paternalism expresses the
idea that the actor knows better than the person acted upon; it implies that the
other party is not capable of making good judgments for herself. The normative
significance of paternalism derives from the typical impermissibility of
making such an expression. That is, paternalism is wrong in the same way
that an insult is wrong. This understanding of paternalism’s normative significance
provides the tools to make the charge of paternalism leveled against
some policies intelligible, and conversely to explain why other paternalistic
policies are permissible.
Book Reviews by Nicolas Cornell
defend the claim that one can forgive an action before the action has
taken place.
An examination of the application of defense of others doctrine to cover non-human animals.
a law, or a policy is paternalistic generally counts against it. This Article
considers three reasons why this might be so—that is, three theories about
what gives paternalism its normative character.
This Article’s claim is that the two most common explanations for paternalism’s
negative character are mistaken. The first view, which underlies the recent
work by Professors Thaler and Sunstein, maintains that paternalism is
negatively charged because it involves coercive interference with people’s
choices. This approach proves inadequate, however, because more coercive actions
can be a less objectionable form of paternalism, and vice versa. Paternalism’s
impermissibility varies independently from its coerciveness. The second
common theory of paternalism focuses on the distinctive intention behind paternalistic
interference. But this approach is ill suited to explain the normative
significance of paternalism because permissibility is not generally dependent
on intention.
This Article sketches a third conception of paternalism—one that locates its
normative significance in neither coercion nor motive. This approach maintains
that paternalism involves expressive content. Paternalism expresses the
idea that the actor knows better than the person acted upon; it implies that the
other party is not capable of making good judgments for herself. The normative
significance of paternalism derives from the typical impermissibility of
making such an expression. That is, paternalism is wrong in the same way
that an insult is wrong. This understanding of paternalism’s normative significance
provides the tools to make the charge of paternalism leveled against
some policies intelligible, and conversely to explain why other paternalistic
policies are permissible.