Straining Toward Natural Law: Margaret Radin and Contract Degradation Part 1.5.1

Last week I posted some initial comments about Professor Margaret Radin's article Access to Justice and Abuses of Contract here. I had planned to get to Part 2 this week but an apposite comment by Eric Enlow, dean of Handong International Law School in Pohang, Korea, has forced me to reconsider two points I made my first time around.

Dean Enlow first questions my conclusion that, just as contracts are means by which humans obtain private goods, so too public remedies for breach of contract are private goods. Quoting myself,

[I]s a right to claim damages for breach of contract a public good? It seems not: the remedy of contract damages--like the practice of contracting--is a private good. 

To which Dean Enlow responds, 

I don't understand why the practice of courts' remedying of breaches of contract concerns only private good. To the contrary, if courts create a state of affairs where the public knows that a breach of a private contract may be remedied, then it creates public conditions where people may contract at lower costs and with greater confidence. Courts thereby facilitate more commercial transactions by lowering transaction costs. Courts may also promote the moral development of personal responsibility in taking responsibility for certain commitments with others and making amends for harms caused by failing in those commitments. 

In other words--my words--provision of a civil remedy for a private wrong (damages suffered as a result of breach of a contract) contributes to the public good in two ways. First, contract law works to increase the frequency of the social practice of contracting and, second, contract law functions as a tutor of private virtue, in particular the virtue of promise-keeping or fidelity. The first promotes an increase in the aggregate number of private goods while the second, the goad of potential civil liability for contract breach, works to increase our individual well-doing, our individual flourishing. In turn, individual flourishing contributes to the flourishing of society as a whole.

In response, I agree with the second of Enlow's points but not the first. With respect to his first criticism, increasing the quantity of private goods (what economists call welfare maximization) may be good for an individual but the effects of American consumerism (my thoughts about consumerism here; even better ones here) suggests that welfare maximization may in fact detract from growth in individual and collective virtue. (Some earlier thoughts on that point here.) In any event, and returning to a point I made in my initial post, I remain unconvinced that welfare maximization is a condition sufficient to identify a public good. I suspect that nothing can be a public good that affirmatively reduces our capacity for private goods but I don't believe the converse follows. In other words, increasing welfare is a necessary but not a sufficient condition by which to identify a public good.

I stand corrected by Enlow's second observation. Promotion of the virtue of fidelity is a public good and contract law can promote fidelity. It is particularly vexing to have overlooked this point because I've made it on previous occasions (see my posts here and here). We all must admit that we need socially instantiated practices to grow in virtue, a habitual turn to the good, and contract law is one such practice. Thus, I affirm that contract law is a public good.

In conclusion, I am grateful to know that someone reads what I write and takes the time to respond thoughtfully to it. Dean Enlow raised an additional point about my Aristotelian account of justice to which I hope to respond soon.

Student Loans and "Free" Higher Education (Updated)

Go here to read a post by friend Colin Chan Redemer titled "Minerva Has Left the Building." In even more unpleasant detail than the piece by Patrick Deneen (below the fold), Redemer explains that 

It is not the few tenured radicals, or the vocal woke students. It is not a few elite institutions. Rather the whole enterprise is rotten. From financing, to administration, to recruiting, to instruction, to accreditation, there is a tunneling wound in American higher education that I fear is fatal.

Just what is this tunneling wound? For an answer Redemer turns to history:

To understand a beast we must look to the head that guides it. In higher education that head is the administration. In the beginning, “administration” meant the servants of the university. The actual university was the faculty and the students.

But now: 

Is it an exaggeration to say that in the modern university the students and faculty exist for the benefit of the administration? Think about it in terms of sheer numbers. People think quite a lot about the student-to-faculty ratio when they are looking into investing in their higher education. But they should be asking about the faculty-to-administrator ratio. According to Forbes, a 2014 Delta Cost Project report shows that “the number of faculty and staff per administrator declined roughly 40% at most types of colleges and universities between 1990 and 2012, now averaging around 2.5 faculty per administrator.” In other words, in the span of just two decades, universities became 40% less efficient at providing instruction to students, if you measure efficiency by the number of administrators you hire per faculty member.

There's much more of value in Redemer's piece but little of hope so I will leave readers with his conclusion:

For now it is enough to say that as parents and students gain clarity on what they want and on what universities now are, the demise of what we think of as higher ed in America is certain. New institutions that kindle the fires of philosophia—the love of wisdom—will rise not because of a billionaire’s vision or bequest, but because humans, by nature, reach out to know. And when their desire to know profound truth touches the cold reality of the modern university, like a root growing on concrete, they will turn aside to deeper, more fertile soil. Granted, billionaires could help this along by donating to already nascent projects; but these will have to be projects run by people who understand that higher ed is dead, at least to its original purpose

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I've posted many times about America's student loan problem. I've addressed the law that student loans are well-nigh impossible to eliminate in bankruptcy (here), although I've also observed that there may be some cracks in the nondischargeability wall (here). I've also written about the peculiar way in which the student loan programs subsidize foolish choices, educational scams, and ultimately drive up the cost of higher education (here, here, and here).

Higher education has become part of the battlefield in the race for nomination as the Democratic Party candidate for president. To the best of my knowledge, the Republican candidates aren't talking about education or student loans but Bernie Sanders and Hillary Clinton certainly are.

But here's the rub: whether it's Clinton's easier loan-payback terms or Sanders's free higher education for all, what are students and taxpayers getting for their money? Rather than wading into the swamp myself, I'll direct folks to two blog posts that address these concerns in significant detail.

First, go here to read Patrick Deneen's post "Res Idiotica" that painfully illustrates the un-education for which we pay billions.

My students are know-nothings.  They are exceedingly nice, pleasant, trustworthy, mostly honest, well-intentioned, and utterly decent. But their minds are largely empty, devoid of any substantial knowledge that might be the fruits of an education in an inheritance and a gift of a previous generation. They are the culmination of western civilization, a civilization that has forgotten it origins and aims, and as a result, has achieved near-perfect indifference about itself.

Deneen is not a crank (he currently teaches at Notre Dame and has taught at Princeton), and his observations of students at elite American universities rings true. Modern-day college graduates are not stupid but they are the products of a federal "No Child Left Behind" program of primary and secondary "education" to learn the skills of taking standardized multiple choice tests as well as undergraduate programs that do little more than train for evanescent jobs in the service economy.

Well, one might ask, if what passes for education is such thin gruel, why does college cost as much as it does? Why does the cost of education continue to rise while its quality continues to decline? Why are students incurring such inordinate student-loan debt?

As James K.A. Smith writes in USA Today here, the educational-industrial complex spends ever-growing sums for "experiences" instead of education:

The story behind the story of student debt inflation is the inflation of the university into an expanding behemoth of goods and services that have little to do with education and more to do with expectations of coddled comfort. Rather than being an institution centered on education, the university now aspires to be a total institution that meets every felt need. The campus is now a sprawling complex of fitness centers and cineplexes, food courts and gargantuan coliseums. Students aren’t taking out loans to pay for an education; they’re effectively borrowing money to pay exorbitant, short-lived taxes for the privilege of living in a scripted, cocooned city.

I would appreciate learning what our candidates for America’s highest elective office have to say about this. Could any of them provide any rationale for education beyond the utilitarian? Could any of them specify what it is that an educated person should know? I am not, however, holding my breath for any answers.

More “Souls In Transition”

Per Chris Smith on p. 51 of his newest book, Souls in Transition: The Religious and Spiritual Lives of Emerging Adults: “One of the apparent effects of this apparently culturally relativistic and the continual self-relativizing to which it leads is speech in which claims are not staked, rational arguments are not developed, differences are not engaged, nature is not referenced, and universals are not recognized.”

Nothing surprising here. “Emotivism,” as Alasdair MacIntyre called it already in 1984 (in After Virtue) describes the state of affairs when people no longer believe there are rational ways of securing moral agreement.  If true nearly 30 years ago, it’s hardly surprising it’s the warp and woof of the EA worldview today.

My law students may find it difficult to make the fine-grained rational arguments I’d like to see (in other words, there’s not enough “A” in the typical IRAC law school exam answer) but they certainly try; but then I suspect that pure emotivists don’t come to law school.

A bit more surprising is Smith’s conclusion on p. 67: “Interviewers could not, no matter how hard they pushed, get emerging adults to express any serious concerns about any aspect about mass-consumer materialism.”  Then, again, maybe I shouldn’t be surprised.  Why should I expect otherwise from a culture whose economy subsists by causing us to want to buy stuff we don’t need and which we can’t afford?