Nicolas Cornell

This article offers a justification for accommodating claims of conscience. The standard justification points to the pain that acting against one’s conscience entails. But that defense cannot make sense of the state’s refusal to accommodate individuals where the law interferes with their deeply meaningful but nonmoral projects. An alternative justification, we argue, arises once one recognizes the connection between conscience and moral address: One’s lived moral convictions determine when and with what force one can hold others to account. Acting against one’s convictions can undermine one’s standing to blame others who act in similar ways. When the state compels someone to act against conscience, it renders her complicit in conduct she takes to be wrong and thereby impairs her ability to condemn similar conduct in the future, in a manner akin to the hypocrite. The reason the state should not compel people to act against conscience, then, is that doing so would undercut their moral standing.

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 basic premises of 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 puzzle thus offers a lens through which to examine—and even revise—the central concepts of modern contract law.

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.

This essay defends the possibility of preemptive forgiving, that is, forgiving before the offending action has taken place. This essay argues that our moral practices and emotions admit such a possibility, and it attempts to offer examples to illustrate this phenomenon. There are two main reasons why someone might doubt the possibility of preemptive forgiving. First, one might think that preemptive forgiving would amount to granting permission. Second, one might think that forgiving requires emotional content that is not available prior to wrongdoing. If, however, preemptively forgiving is genuinely possible—as this essay hopes to illustrate—then this fact has implications for our understanding of both relational normativity and the nature of forgiveness.