Wednesday, July 18, 2007
This year is the 90th annivarsary of Judge Cardozo's opinion in Wood v. Lucy, Lady Duff Gordon, and it will be marked this fall with a conference at Pace Law School in White Plains, New York. Jim Fishman (Pace) is the organizer, and the proceedings will be published in a special issue of the Pace Law Review.
Click on the "continue reading" link for the tentative program, which should be interesting not only to contracts scholars but to fashionistas. , since it will feature a wealth of detail about the fashion designer known as "Lucile" and the world in which she lived.
Over the years some of the greatest thinkers about contract law have tried to come up with a unified theory that explains it. None of them has succeeded, although their efforts have often resulted in new insights into the field. Now comes Robin Ker (Loyola-L.A.), a philosopher as well as a legal scholar, with an interesting and ambitious attempt to reconcile the various threads, Contractualism About Contract Law. Here's the abstract:
Modern contract theory is in a quandary. Whereas consequentialist theorists typically point to principles of efficiency-maximization to account for the rules of modern contract law, and deontological theorists typically point to considerations of liberty or the ordinary morality of promise-keeping, none provides a satisfying and unified account of three central and highly stable aspects of modern contract law. These are: first, the standard remedies granted for contractual breaches; second, the centrality of the consideration doctrine; and, third, the tension between legal doctrines that require courts to defer to parties' voluntary assent when determining the existence or content of contractual obligations and doctrines that allow courts to police bargains for fairness. In this Article, I argue that contractualism -- especially as elaborated in connection with Stephen Darwall's recent work on the second-person standpoint -- has the power to harmonize these doctrines.
In most other areas of normative inquiry, contractualism has held a solid place, but the view is conspicuously absent in most theoretical debates about modern contract law. To explain this absence, I canvass a number of reasons why contractualism might appear to be an unpromising theoretical standpoint from which to account for the rules of modern contract law. I argue that these considerations are, however, better understood as placing special constraints on the form that any satisfying contractualism about contract law must take. In the remainder of the Article, I then develop an account that meets these special constraints.
Given the robustness of efficiency-based explanations of contract law doctrine, one important constraint will be that contractualism provide a more robust explanation of doctrine than efficiency theorists can. In the substantive portions of the Article, I therefore argue that there are aspects of the standard contract law remedies -- including the expectation damages remedy -- that cannot in fact be fully explained or justified in terms of familiar notions like “efficient breach.” These same aspects can, however, be accounted for from within the second-person standpoint. If Darwall is right, then this standpoint commits to a contractualist account of what we owe to one another. In the remainder of the Article, I therefore develop a contractualist account of modern contract law that is, I argue, more robust than both current efficiency and promise-based theories - at least in relation to the three central doctrines under discussion.
The resulting view promises to reconcile modern liberalism with a number of modern contract law's puzzling features. It also promises to help us identify the appropriate role and limits of doctrines that allow or require courts to police private bargains for fairness. Together, these facts warrant, at minimum, further time and attention to developing the view and extending it to a broader range of doctrine. Contractualism about Contract Law should -- I argue -- hold a central place in theoretical discussions of modern contract law.
Tuesday, July 17, 2007
It's summer, the time when a young lawyer's fancy turns to thoughts of chucking it and going into teaching. Lots of lawyers suspect (correctly, as it happens) that academic life is less stressful and often more intellectually rewarding than law practice, and they want to get in on a good thing. Even if it means having to survive on only $100,000 a year.
Many lawyers feel that their years of experience at the highest levels of the profession and their work on the most sophisticated, cutting-edge legal issues will be a big asset when they enter the teaching field. But they would be dead wrong. Extensive law practice experience is, unfortunately, the sort of thing that can actually disqualify you from academia.
For those of you who (like me) practiced law for more than a decade and were partners in big international firms before going into teaching, check out Jeff Lipshaw's How Not to Retire and Teach, for some useful tips on how to break into the profession.
A surprising amount of international business is done in America by folks who don't know that the United Nations Convention on Contracts for the International Sale of Goods is part of the law of the United States -- let alone understand how its provisions differ from domestic sales laws. Jonathan Yovel (Columbia/Haifa) offers a good introduction to the international rules in The Seller's Right to Avoid the Contract in International Sales. Here's the abstract:
In the context of transnational transactions, the question of severing contractual relations due to a breach of contract (designated as "avoidance" or "termination" by different legal instruments) is of special interest. The complexities, costs, and particular risks associated with international transactions call for inventive balances between an aggrieved party's interest in protecting reliance interests - inter alia, through termination of the contractual relations - and the interest that the party in breach may still have in maintaining them, even under conditions of breach. This article analyzes an aggrieved seller's right (or more precisely, power) to terminate the contract for breach in the context of two sophisticated transnational regimes that are quickly growing in prominence and influence. These are the UN Convention on Contracts for the International Sale of Goods, 1980 (hereinafter CISG) and the Principles of European Contract Law, 2003 (hereinafter PECL). The Uniform Commercial Code and other national regimes are considered as well.
Evaluated both together and separately, a comparison of these systems yields a new analysis of the question of contract avoidance in transnational transactions. Here is an opportunity for drafters to formulate remedial regimes that respond to diverging provisions in legal systems informed by different ideological approaches to the question of contractual relations: from the tactical, risk-allocating approach that regards contractual relations as something akin to an investment, to be continued or aborted upon rational calculations of alternative transactions, to the most relational approaches, emphasizing long-time cooperation, wishing to strengthen relations and allow parties to move through an escalation of remedies and other measures until reaching the radical severance of contractual relations through avoidance of the contract. Indeed, in important respects the very nature of the contractual interaction is best studied through the topic of remedies for breach, and through the availability of the power to unilaterally severe the contractual relation in particular.
There's an interesting story from Law.com, about the pro bono lawyers who helped the Liberian government renegotiate a major contract with an international steel company. The project was a collaboration between academic lawyers who provided expertise and the Cravath law firm, which provided the negotiation skills.
Two new papers on the practical aspects of contracting in the digital age have made this week's list, along with eight returnees Following are the top ten most-downloaded new papers from the SSRN Journal of Contract and Commercial Law for the 60 days ending July 15, 2007. (Last week's rank in parentheses.)
1 (1) The Failure of Economic Interpretations of the Law of Contract Damages, Nathan B. Oman (Wm. & Mary).
2 (3) Contractualism About Contract Law, Robin Bradley Kar (Loyola-L.A.).
3 (5) The ‘Natural Meaning’ of Contracts, John Carter & Elisabeth Peden (Sydney).
4 (6) Contract Rights and Remedies, and the Divergence between Law and Morality, Brian Bix (Minnesota).
5 (6) When Common Law Trumps Equity: The Rise of Good Faith and Reasonableness and the Demise of Unconscionability, Elisabeth Peden (Sydney).
6 (8) E-Contract Doctrine 2.0: A Fresh Approach to Online Standard Form Contracts in the Age of Online User Participation, Shmuel I. Becher & Tal Zarsky (Haifa).
7 (9) The Expressive Function of Directors' Duties to Creditors, Jonathan C. Lipson (Temple).
8 (10) Transparency and Determinacy in Common Law Adjudication: A Philosophical Defense of Explanatory Economic Analysis, Jody S. Kraus (Virginia).
9 (-) Just One Click: The Reality of Internet Retail Contracting, Ronald J. Mann (Texas) & Travis Siebeneicher (Fulbright & Jaworski).
10 (-) Reinventing Consumer Protection, David Adam Friedman (Willamette).