Contracts And Property

These are two different subjects in law school.  Usually first year law school.

The distinction is very traditional, meaning that at least at some point in the distant past it was thought quite fundamental to distinguish these two ideas.  And re-discovering our appreciation for the difference between the two is one of the keys to understanding both why we are in a “financial crisis” to begin with, and what might be done to favorably resolve it.

Here’s a hint:  debt is always, always a contract.  It is never property.  Property rights are natural rights, protected by the US constitution and deemed fundamental.  Contract rights are none of those things.*

Lawyers should be thinking about that, and about how badly we have allowed property and contract to become confused in practice, to the detriment of the rule of law and the society we live in.

* Article I, section 10 of the constitution prohibits states from “impairing the obligation of contracts”.  This amounts to a significant qualification to the assertion that contract rights are not protected by the constitution, but would require a much longer post, which I am not in the position to do right this minute.  If anyone is interested, though, I’ll get on it some time soon. 🙂


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Filed under financial crisis, Striking lawyers

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