ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Tuesday, September 22, 2009

Contracts Law & Injustice


This year, more than any other year, my students are telling me that they hate contracts.  It's nothing personal, or at least I don't think it is.  That is, they don't dislike my course, but they find it frustrating because contracts law seems to be set up to protect the well-resourced and the knowledgeable.  Sure, they may be able to advise their clients on how to protect their legal interests, but only by adopting strategies designed to exploit the credulity, timidity and distraction of the weak.  This is not quite the message I've been intending to convey, but I can see how my students would have concluded that it is.

We started by discussing intent to be bound and a court's indifference to our actual, subjective intentions when we have manifested a different intention by signing a document or by clicking "I agree" on  a EULA that we do not read and are not really expected to read or to understand.  We also discussed the fact that even expectation damages will not really make a party whole because of the American rule which prevents recovery of attorneys' fees and court costs.  In addition, recovery will not make a party whole when damages are speculative, and in Lefkowitz, at least some of my students felt the court could have provided plaintiff with more of an opportunity to establish his damages with reasonable certainty.  

Still, I was taken aback when I asked a student if she was concerned about the disconnect between legal and moral norms evidenced in Mills v. Wyman.  She responded, "Yeah, but we've already learned that contracts law is not about justice."  Ouch.  

Perhaps contracts doctrine will win their love back when we cover excuses.

[Jeremy Telman]

Postscript: I've just been re-reading Judge Posner's opinion in Classic Cheesecake.  My students made uncomfortable by contracts law's moral neutrality will not enjoy tomorrow's class.

September 22, 2009 in Teaching | Permalink | Comments (13) | TrackBack (0)