Law in Contemporary Society

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ArgiriosNickasFirstEssay 5 - 05 Jun 2016 - Main.EbenMoglen
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The (Second) Restatement §90(2): A Holmesian Disaster?

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 In light of inconclusive activity level effects, the unchallenged adoption of §90(2) in certain jurisdictions, and the functioning of a powerful non-legal regime, such an equitable standard may be worth further consideration for the most egregious violations of the collective values charity relies upon. §90(2)’s greatest worth may be its Holmesian nod to courts that strict adherence to formalism is not always justified.

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I don't know what this formulation means. Formalism about consideration? Nor do I understand what the argument about effect might be. Obviously it will never under any circumstances become common for charitable organizations to sue putative donors on their pledges. Whether such a suit is barred by contract doctrine or only by the brusque realities of existence hardly matters. That there might be a setting in which continued, apparent, induced adverse reliance might lead to obligation is not an earthquake whether or not some bunch of law professors has changed its mind about something.

We are much better off in this draft for being closer to material whose relevance is plausible, but still we might ask relevant to what? Why does all this to-ing and fro-ing make the slightest difference to anyone anywhere about anything? What are you telling us about this matter, assuming we can be made to care. You appear to be saying some provision in a document issued by law professors without portfolio or authority might be very bad for some imponderable reason except that it isn't because it doesn't do anything, which we could all see very clearly in the first place. What's going on? Explain to the reader why it matters, if you can.

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Revision 5r5 - 05 Jun 2016 - 18:57:01 - EbenMoglen
Revision 4r4 - 14 Apr 2016 - 20:34:01 - ArgiriosNickas
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