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Valparaiso Univ. Law School

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Wednesday, May 12, 2010

Elena Kagan: What's Her View on Contracts?

Kagan3 Over at The Conglomerate, Christine Hurt has helpfully assembled blog posts addressing various issues that have come up in connection with the nomination of Elena Kagan (pictured) to succeed Justice Stevens on the U.S. Supreme Court.  Notably absent in all of these posts is any discussion of or any predictions regarding how Justice Kagan will vote on vital contracts law issues.

For example, although Eugene Volokh, Brian Leiter, Paul Campos, and Mark Tushnet have all weighed in on Kagan's scholarship, none have mentioned her complete failure to address any important doctrinal issues in contracts law.  Has she written about unconscionability?  The battle of the forms?  The concept of fault in contract law?  The prevalence of promissory estoppel claims?  Whether contracts profs should devote one month or two to the doctrine of consideration?  One searches her publications in vain for even a hint of interest in any of these subjects.  A very disappointing record for someone who could be the deciding vote in future battles over enforceability or interpretation of contracts.  Who will set Justice Breyer straight on the consequences of Joe Bananas' actions?  Who will take Justice Scalia aside and explain that the unconscionability doctrine is not about protecting the rights of stupid people?  We can only hope that the Senate confirmation hearings will be as illuminating as they usually are on such issues.  

Professor Hurt points us to Ilya Somin's post at The Volokh Conspiracy on Dean Kagan's decision not to allow military recruiters to visit Harvard's law school because of the military's "don't ask, don't tell" policy.  However, Somin does not mention and Hurt does not note that military recruitment involves contracts.  What are we to infer from Kagan's actions about her attitudes towards promoting the negotiation of binding agreements? 

Hurt similarly alerts us to various concerns, expressed by Elizabeth Nowicki, Dan Markel and by four law professors who wrote a Salon column after writing letter to White House, relating to Dean Kagan's hiring decisions while at Harvard's helm.  Once again, the posts all shockingly fail to address the fact that hiring decisions implicate contracts.  Clearly, one's conclusions regarding Kagan's anti-contract tendencies in connection with military recruitment must be balanced against her willingness to enter into contracts in the hiring context.  Or do these episodes suggest that Kagan has not yet developed a coherent approach to contracts.  Is she a contractual flip-flopper or is her approach characterized by the sort of care and nuance associated with the man she has been selected to replace?

Ann Althouse does nothing to illuminate Kagan's views on contracts in her post about Kagan on the subject of gay marriage. 

Nate Oman comes closest to raising this important subject over at Concurring Opinions, where he points out that Kagan's resume is weak on private law issues.  Indeed, there has been a remarkable though unremarked prejudice in judicial appointments against those who have devoted their legal careers to such issues.  Why was there never a Judge, let alone Justice Karl Llewellyn?  Would not Judge Williston have adjudicated with formalist rigor.  Would not a Justice Corbin have reached the equitable result in every case argued before him?  It is, indeed, an outrage.

[Jeremy Telman]

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