Friday
Prude, Lewd collude; views eschewed
Earlier this week, John Holbo posted about Amartya Sen's paradox of Lewd and Prude (and reminded me of why Crooked Timber was at one time my favorite blog, but that's not the point of this post). To briefly restate it, Lewd likes reading pornographic novels (apparently Lady Chatterley's Lover in the original example) and also likes for other people to read them. He'd especially like Prude to read it, because Prude needs some loosening up. Prude doesn't like like reading pornographic novels, wants no one to read them, and especially doesn't want Lewd to read it because in Lewd's degenerate state god only knows where it would lead. So the two of them come to an agreement and exchange Prude's reading of the novel for Lewd's promise never to read the novel, each getting their most preferred option. This outcome is supposed to optimal for utilitarians (because its maximally preference satisfying) but problematic for liberals because these people are giving up their right to read what they want.
Holbo finds this purported paradox non-paradoxical, as did Brad DeLong when he discussed it years ago. Daniel Davies (commenting as dsquared, as is his wont) claims in both the Holbo and the DeLong threads that it is a paradox (the paradox of the liberal state being unwilling to enforce all contracts), and Leo Katz appears to agree, though the most relevant pages of his book aren't included in the free sample (I'd find out, but the book isn't available for kindle and I'm not tracking down a hard copy of an out of print book. If anyone wants to buy me a copy, I will read it, it looks really good). The Holbo thread, by the way, is hilariously funny, especially once Rich Puchlasky starts actually writing stories about Lewd and Prude.
Anyways, what I wanted to do is discuss the agreement between Lewd and Prude as an actual contract, and consider what would happen in the event of breach. Say that Prude breaches the contract by refusing to read the book. If Lewd sues for this breach, what results? The answer is probably that a court would find it void as against public policy, but that's boring, I want to consider the issue of measure of damages and remedy, because I think it mostly solves the problem (and generally solves a bunch of problems involving contracts which conflict with other liberal values).
Specific performance (a court order telling Prude to read the book)will almost certainly not be awarded as a remedy, because this is a personal services contract and specific performance is not generally awarded for personal services contract. Expectation damages are going to be essentially impossible to measure. In theory, they're the dollar Lewd assigns to his enjoyment of Prude reading the book less the dollar value Lewd assigns to his own reading of the book. But that's going to be subject to serious issues of proof, so another way to go is a cost of cover remedy, where the court awards Lewd whatever it would cost him to pay someone with similar preferences to Prude to read the book, though again the amount that Lewd values his ability to read the book needs to be deducted from this. So I don't think expectation damages are going to work. There are no reliance damages, Lewd didn't any additional costs because of his belief that Prude would read the book. So Lewd is stuck with nominal damages, and we get the question: what's so bad about a court telling Prude to pay Lewd a buck or two for breaching his agreement to give up certain rights, even though that agreement was in conflict with liberal values? If this solution generalizes to other problematic contracts (it kinda does, though not completely), maybe the conflict between utilitarianism and a liberal regime of values is overstated.
I apologize if this post was so boring, over-long, or poorly written that it made your eyes bleed. My next post will be short and punchy, I promise.
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Holbo finds this purported paradox non-paradoxical, as did Brad DeLong when he discussed it years ago. Daniel Davies (commenting as dsquared, as is his wont) claims in both the Holbo and the DeLong threads that it is a paradox (the paradox of the liberal state being unwilling to enforce all contracts), and Leo Katz appears to agree, though the most relevant pages of his book aren't included in the free sample (I'd find out, but the book isn't available for kindle and I'm not tracking down a hard copy of an out of print book. If anyone wants to buy me a copy, I will read it, it looks really good). The Holbo thread, by the way, is hilariously funny, especially once Rich Puchlasky starts actually writing stories about Lewd and Prude.
Anyways, what I wanted to do is discuss the agreement between Lewd and Prude as an actual contract, and consider what would happen in the event of breach. Say that Prude breaches the contract by refusing to read the book. If Lewd sues for this breach, what results? The answer is probably that a court would find it void as against public policy, but that's boring, I want to consider the issue of measure of damages and remedy, because I think it mostly solves the problem (and generally solves a bunch of problems involving contracts which conflict with other liberal values).
Specific performance (a court order telling Prude to read the book)will almost certainly not be awarded as a remedy, because this is a personal services contract and specific performance is not generally awarded for personal services contract. Expectation damages are going to be essentially impossible to measure. In theory, they're the dollar Lewd assigns to his enjoyment of Prude reading the book less the dollar value Lewd assigns to his own reading of the book. But that's going to be subject to serious issues of proof, so another way to go is a cost of cover remedy, where the court awards Lewd whatever it would cost him to pay someone with similar preferences to Prude to read the book, though again the amount that Lewd values his ability to read the book needs to be deducted from this. So I don't think expectation damages are going to work. There are no reliance damages, Lewd didn't any additional costs because of his belief that Prude would read the book. So Lewd is stuck with nominal damages, and we get the question: what's so bad about a court telling Prude to pay Lewd a buck or two for breaching his agreement to give up certain rights, even though that agreement was in conflict with liberal values? If this solution generalizes to other problematic contracts (it kinda does, though not completely), maybe the conflict between utilitarianism and a liberal regime of values is overstated.
I apologize if this post was so boring, over-long, or poorly written that it made your eyes bleed. My next post will be short and punchy, I promise.
