ContractsProf Blog

Editor: D. A. Jeremy Telman
Valparaiso Univ. Law School

Monday, February 27, 2012

Best Contracts Scholarship of 2011: Honorable Mentions, Part II

Two weeks ago we announced the top vote getters in our search for the best contracts scholarship of 2011.  We, the editors of the blog then voted for our favorites among those five, which are:

Omri Ben-Shahar, Fixing Unfair Contracts, 63 Stan. L. Rev. 869 (2011)

Robert A. Caplen, Turning Esch to Dust? The State of Supplementation of the Administrative Record in Bid Protests before the Court of Federal Claims, 12 Whittier L. Rev. 197 (2011)

Victor Goldberg, Traynor (Drennan) Versus Hand (Baird):Much Ado About (Almost) Nothing, J. Legal Analysis Advance Access (Oct. 7, 2011)

Juliet P.Kostritsky, Interpretive Risk and Contract Interpretation: A Suggested Approach for Maximizing Value2 Elon L. Rev. 109 (2011)

Kemit A. Mawakana, In the Wake of Coast Federal: The Plain Meaning Rule and the Anglo-American Rhetorical Ethic, 11 U. Md. L.J. Race, Religion, Gender & Class 39 (2011)

The voting confirmed the quality of the competition, as each of the finalists had its supporters, with three different articles receiving at least one vote for #1 among the five of us who voted.

In order to draw out the suspense as long as possible, we will count down to #1 Casey Kasem style, except that our honorable mentions are in no particular order.  

Kemit_mawakanaHonrable mention #2 goes to Kemit A. Mawakana, In the Wake of Coast Federal: The Plain Meaning Rule and the Anglo-American Rhetorical Ethic, 11 U. Md. L.J. Race, Religion, Gender & Class 39 (2011)

Kemit Mawakana is Associate Professor of Law at the University of the District of Columbia's David A Clarke School of Law, where he teaches contracts and the Community Development Law Clnic. 

Professor Mawakana's article uses anthropological work to highlight the danger that injustices will arise as a result of the Federal Circuit's embrace of the plain meaning rule (PMR) in Coast Federal Bank, FSB v. United States, 323 F.3d 1035 (Fed. Cir. 2003) (en banc).  Dr. Ani developed the concept of the rhetorical ethic (RE) which she associates with Euro-American culture.  The RE assists Euro-Americans in the maintenance of power, enabling them to talk of lofty principles such as peace and goodwill while in fact engaging in war and other destructive practices.  According to Dr. Ari, "Nowhere other than in European culture do words mean so little as indices of belief."

After an introductory section providing examples of the RE at work in U.S. society ("All men are created equal . . ."), Professor Mawakana takes us through the history of the PMR.  Applying the PRM in the contractual context, courts give words their plain, ordinary, and literal meaning, even if that meaning differs from the parties intention and even if it yields to harsh or inequitable results.  The PMR fell into disfavor in the 20th century, havnig been rejected by the Restatement (Second) of Contract and by the Uniform Commercial Code, but some jurisdictions still follow the PMR, and the Federal Circuit embraced it in its 2003 decision in Coast Federal

Professor Mawakana next reviews the facts and history of Coast Federal, in which the Federal Circuit en banc reversed a panel decision, finding that the PMR applied to this very complex case with a tortured history.  He reviews arguments for an against the PMR, and then, in a concluding section explains the PMR with the assistance of Dr. Ari's RE theory.  From this perspective, the PMR is an embodiment of RE and injects hypocrisy into the pursuit of justice.  Professor Mawakana's solution is simple: permit the introduction of extrinsic evidence in contractual disputes.


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