Friday, March 23, 2018
Pseudo-Contract in the Harvard Law Review
The Harvard Law Review has committed to publishing an article on contract law theory for the first time since 2007.
The piece is Pseudo-Contract and Shared Meaning Analysis by Robin Bradley Kar (Illinois) and Margaret Jane Radin (Toronto), which appeared our Top Ten lists earlier this year. Here is key thesis from the abstract:
Over the last several decades, courts and legal scholars have struggled with whether or when to consider boilerplate text as contract …. [C]ontract law has been shifting away from its traditional focus on enforcing parties’ actual agreements. This shift has been transforming the meanings of central contract law concepts. We view the shift as an untheorized paradigm slip, inviting a generalized theory of contract as assumption of risk and allowing private obligations to be created unilaterally without actual agreement. This sort of obligation is still called “contract.” But it is pseudo-contract.
It’s sure to generate lively debate. Jeff Lipshaw (Suffolk) has already posted a response, Conversation, Convention, or Conversion? in which he “caution[s] against rushing into shared meaning analysis as a broader basis for understanding contract formation or interpretation.”