That is the subtitle of this fascinating paper — the full title of the paper is “Exception and Necessity: The Possibility of a General Theory of Emergency” — written by our colleague William Vazquez-Irizarry, a law professor at the University of Puerto Rico. In his paper, Professor Vazquez-Irizarry compares and contrasts the state of exception doctrine in public law with the doctrine of necessity in private law and develops a “general theory of emergency” common to both areas of law. The idea of a general theory of emergency is intriguing and original, but there is no reference in this paper to the work of Ronald Coase or John Rawls. That is, what would happen if rulers and the ruled could bargain with each other, either ex ante behind a Rawlsian veil of ignorance or ex post (assuming, of course, zero transaction costs)? In either case, what rules or principles would we agree to for dealing with public and private emergencies? Would the rules for private emergencies be the same as the ones for public emergencies?
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