September 22, 2009
Contracts Law & Injustice
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.
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.