October 01, 2008
Poetic Meter and Fault in Contracts Law
Our own Keith Rowley was on the program for the conference on Fault in Contract Law held this past weekend at the University of Chicago Law School, with the papers to be published in the Michigan Law Review. I will therefore leave it to Keith to report on those proceedings in detail. But I do feel that one aspect of the conference falls clearly within my jurisdiction -- that is, the intersection between contracts law and poetry. George M. Cohen (pictured) noted at the beginning of his presentation that the title of his conference paper, "The Fault that Lies within Our Contract Law," is iambic pentameter. Judge Richard Posner's title, on the other hand, "Let Us Never Blame a Contract Breaker," is also pentameter, but beginning with a stressed syllable, Posner's meter is trochaic rather than iambic. The difference, Cohen remarked, between those who, like him, believe that there is room for discussion of fault in contract law and those who, like Posner, would banish notions of morality from the law, is really one of emphasis. Professor Cohen had a very good day when he realized that he could indicate that point by contrasting his own title with that of Judge Posner.
Another highlight of the conference: Judge Posner praised Oliver Wendell Holmes' The Common Law and especially the option theory of contract contained therein. Chicago's Richard Epstein objected that Holmes' book is incoherent, and he could not imagine why anyone would seek to rely on Holmes as a source for a comprehensive approach to contracts. There was some uneasiness in the room as these formidable scholars prepared to lock horns, but Judge Posner evaded the controversy, conceding that there was only one person in the room about whom people living 127 years now from would say that he had a completely coherent approach to the law. Professor Epstein received Judge Posner's bon mots with his wonted grace.
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