Randy Barnett

Randy Barnett is a lawyer, law professor, and legal theorist in the United States, noted for his libertarian theory of law and his work on contract theory and constitutional law and theory.

Table of contents

1 Biographical Sketch
2 The Structure of Liberty
3 Contract theory
4 Constitutional theory
5 Bibliography

5.1 Books
5.2 Articles

6 Related topics
7 External links

Biographical Sketch

After attending Northwestern University in Evanston, Illinois and Harvard Law School in Cambridge, Massachusettss, Barnett worked as a State's Attorney (prosecutor) in Chicago, Illinois. Barnett initially taught at the Chicago-Kent College of Law of the Illinois Institute of Technology; he later became the Austin B. Fletcher Professor of Law at Boston University. Barnett has also twice been a Visiting Professor of Law at Harvard Law School. He is a Senior Fellow of the Cato Institute. Barnett is noted for his work on constitutional law, contract theory and on libertarian theories of law. His book,The Structure of Liberty was awarded the Ralph Gregory Elliot Book in 1998.

The Structure of Liberty

Barnett's most important work is The Structure of Liberty, which offers a libertarian theory of law and politics. Barnett calls his theory the liberal conception of justice, emphasizing the relationship between legal libertarianism and classical liberalism. Barnett's argument for the liberal conception focuses on three problems of human interaction:

the problem of knowledge--each individual has unique knowledge about her own interests and situation and about how resources can best be used.
the problem of interest--each individual has self-interests which can be coordinated through the creation of decentralized property rights.
the problem of power--given that those with the power to impose punishments will be partial to their own interests, the power to punish or to use force to compel restitution is likely to be abused.

Barnett argues that each of these problems must be solved in order for individuals to be able to pursue their happiness under conditions of social peace.

Barnett argues that these the problems of knowledge, interest, and power can best be solved by a form of social organization that respects the liberal conception of justice. The liberal conception has six elements:

Property rights, defined as rights to acquire, possess, use, and dispose of scarce physical resources.
The right to acquire property through first possession.
The right of freedom of contract, which specifies that a rightholder�s consent is both necessary (freedom from contract) and sufficient (freedom to contract) to transfer alienable property rights.
The right of restitution, which requires that one who violates the rights of others must compensate the victim.
The right of self-defense.

Barnett argues that the liberal conception of justice can best be realized by a polycentric constitutional order, which substitutes private police and dispute resolution mechanisms for the state.

Contract theory

Barnett is also known for is work in contract theory. In that field he has advanced a distinctive theory of contract formation that emphasizes the intention to be bound as the key to contract law. He is also known for his work on the idea of a default rule, i.e. a rule of contract law that binds the parties if their contract does not cover the eventuality or condition that is the subject of the default rule.

Constitutional theory

Barnett has also done work on the theory of the United States Constitution. As a constitutional theorist, Barnett has defended an originalist method of constitutional interpretation, and argued that this method leads to recognition of a presumption of liberty under the United States Constitution. Barnett suggests that the Supreme Court's 2003 decision in Lawrence v. Texas provides some evidence that the Court is moving towards recognition of a general presumption favoring constitutional liberty. Barnett is also known for his work on the history and original meaning of the Second and Ninth Amendments to the United States Constitution. Barnett is a leading proponent of the view that the "rights retained by the people" in the Ninth Amendment are judicially enforceable. He has also advanced the view that the Second Amendment creates an individual right to bear arms.

Bibliography

Books

RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY (Princeton: Princeton University Press, Fall 2003)
THE STRUCTURE OF LIBERTY: JUSTICE AND THE RULE OF LAW (Oxford: Clarendon Press (1998) (paperback ed. 2000)
CONTRACT CASES AND DOCTRINE (Boston: Little, Brown & Co., 1995; Second Edition, Aspen Law & Business, 1999)
PERSPECTIVES ON CONTRACT LAW (Boston: Little, Brown & Co., 1995; Second Edition, Aspen Law & Business, 2001)
THE RIGHTS RETAINED BY THE PEOPLE: THE HISTORY AND MEANING OF THE NINTH AMENDMENT � VOLUME TWO (editor) (Arlington: George Mason University Press, 1993)
THE RIGHTS RETAINED BY THE PEOPLE: THE HISTORY AND MEANING OF THE NINTH AMENDMENT � VOLUME ONE (editor) (Arlington: George Mason University Press, 1989)
ASSESSING THE CRIMINAL: RESTITUTION, RETRIBUTION AND THE LEGAL PROCESS (coeditor with John Hagel III) (Ballinger Publishing Co., 1977)

Articles

Randy Barnett, Justice Kennedy's Libertarian Revolution: Lawrence v. Texas (Social Science Research Network 2003).