Donald Smythe, ‘Liberty at the Borders of Private Law’

Introduction:
… Part II of this Article discusses the relationships between liberty, he State, and private law and elaborates on some of the presumptions of
the analysis. Part III focuses on the relationships between liberty and specific property law doctrines. It uses examples from human rights, the first in time, first in right rule, findings and adverse possession, and eminent domain to illustrate some of the ways in which property doctrines may advance or undermine liberty, depending on whether the doctrines are appropriately constructed and applied. It also raises concerns about the ways in which property law may systematically undermine liberty, using courts’ enforcements of some private land-use restrictions as an example. Part IV focuses on the relationships between liberty and specific contract law doctrines. It uses examples from the parol evidence rule, the unconscionability doctrine, and the impracticability doctrine to illustrate the ways in which contract doctrines may advance or undermine liberty, depending on whether the doctrines are appropriately constructed and applied. It also raises concerns about the ways in which contract law may systematically undermine liberty, using, as an example, the practices of some State-sponsored, non-profit corporations that use lifestyle covenants and morals clauses in their employment contracts to intrude into their employees’ spheres of personal autonomy and privacy. Part V offers some conclusions … (more)

Smythe, Donald J (2015) ‘Liberty at the Borders of Private Law’, Akron Law Review: Vol 49: Iss 1, Article 1.

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