February 10, 2011
Wisconsin Contracts Group Conference in October
The Wisconsin Contracts Group and the Wisconsin Law School announce a contracts conference to be held at Wisconsin Law School on October 21-22, 2011. The title of the conference is: Empirical and Lyrical: Revisiting the Contracts Scholarship of Stewart Macaulay. A website with details about the conference, including a brief description of paper topics, has been established. Sixteen papers will be presented at the conference, by the following scholars: David Campbell, Robert W. Gordon, Ethan Leib, Brian Bix, Jay Feinman, Gillian Hadfield, Claire Hill, Charles Knapp, Deborah Post, Edward Rubin, Carol Sanger, Robert Scott, D. Gordon Smith, Josh Whitford and Li-Wen Lin, John Wightman and William Woodward. The conference will conclude with a banquet on Saturday, October 22, at which Stewart Macaulay will give a talk.
All faculty and academic staff at any university are welcome to attend. There is no conference fee. Pre-registration is required for the conference and for the conference banquet. For more information, see the website linked above. Questions about registration, etc., should be directed to Pam Hollenhorst, Conference Coordinator, at firstname.lastname@example.org. Other questions about the conference should be directed to Bill Whitford, at email@example.com.
February 02, 2011
UCC Conference at South Texas College of Law
ANNOUNCEMENT AND CALL FOR PAPERS
Amended Article Two: Reversing the Curse?
The uniform law for sales of goods in the United States has not been substantially amended since 1951. The U.S. Constitution, during that time, has been amended five times.
After an attempt at a full-scale UCC Article Two revision ended in the mid-1990s, the American Law Institute and the National Conference of Commissioners on Uniform State Laws organized a more modest effort to amend Article Two. This effort ended with the promulgation of Amended Article Two in 2003. The amendments provided for electronic transactions, updated the statute of frauds, addressed the battle of the forms, revised some consumer protection provisions, and repealed archaic shipping terms. Few would quarrel with the need for such amendments, but Amended Article Two has not been enacted in any state.
Will it be? Could it be re-packaged and resold (in a commercially reasonable manner)? If not, why not? What does this mean for future amendments to Article Two?
To address these questions, a group of scholars, practitioners, and interested observers both for and against Amended Article Two's passage will convene at the South Texas College of Law in Houston, Texas, on April 8, 2011, at 9 am, for a one-day conference. Committed participants include
•Henry Gabriel, Professor of Law at Elon University School of Law and Reporter for Amended Article Two;
•Larry Garvin, Lawrence D. Stanley Professor of Law at the Ohio State University College of Law;
•Holly Towle, Partner at K&L Gates in Seattle, Washington; and
•Scott Burnham, Frederick N. & Barbara T. Curley Professor at Gonzaga University School of Law and conference co-organizer.
Contributions to the conference will be published in the South Texas Law Review, with an introduction by Fred Miller, Professor Emeritus at the University of Oklahoma School of Law.
Of course, all interested are invited to attend. Inquiries related to the conference should be made to Val Ricks at firstname.lastname@example.org.
January 20, 2011
Civil Recourse Theory in the Sunshine State
The Florida State University College of Law will host a "Symposium on Civil Recourse Theory" on February 11-12 in Tallahassee. Civil Recourse Theory (CRT) is hot new theory in the private law area, and FSU has lined up an impressive panel of speakers. Here's the sitch:
Civil recourse theory is an account of private law (property, contract and especially tort) according to which the primary purpose of private law is to empower victims to confront publicly those who have wronged them and enlist the state’s help in addressing those wrongs. This event brings together some of the world’s top scholars in private law to discuss this emerging area of legal philosophy.
The proceedings will be published in the FSU Law Review. Attendance at the conference in free. And even better (if you've blown your travel budget) is that the school will provide live streaming video of the whole bean feed. Full details here.
If you're not familiar with CRT, a good introduction from a contract law perspective is Nate Oman's (Wm. & Mary) Consent to Retaliation: A Civil Recourse Theory of Contractual Liability.
FGS (via Curtis Bridgeman)
January 13, 2011
Deadline Approaching for Spring Contracts Conference Hotel
"What do we want?"
"When do we want 'em?"
Were I in Valparaiso, where I have trained my first-year students to initiate this chant at the beginning of every Civil Procedure and Criminal Law class, I would not be surprised. But in San Francisco?
At first, I thought it was the union workers outside of the San Francisco Hilton, but upon closer inspection, I noticed that most of the people carrying signs and chanting were wearing their AALS badges. And given that a session of the AALS conference had just let out, I can only conclude that what they meant was something like, "We are not satisfied with the three hours of contracts law discussion hosted by the AALS Section on Contracts yesterday. Enough of these other sessions that don't interest us. We want more contracts sessions!"
Fortunately, there is a solution. As we mentioned before, Stetson University College of Law and Texas Wesleyan School of Law are co-sponsoring the 6th Annual International Conference on Contracts, February 18 and 19, 2011, at Stetson’s beautiful campus in Gulfport, Fla. Similar to previous contracts conferences held at UNLV, McGeorge, South Texas, Texas Wesleyan, and Gloucester, England, this conference is designed to offer scholars and teachers at all experience levels an opportunity to present and discuss recently-published papers, forthcoming papers, works-in-progress, and pedagogical innovations, and to network with colleagues from the U.S and around the globe.
You can register for the conference here.
But here's the deal: those planning on attending need to reserve a hotel room by January 18th. Otherwise, the Tradewinds will release the rooms and you won't be guaranteed a place to stay. Of course, there are other options nearby.
January 06, 2011
AALS Meeting Affected By Labor Dispute
As many readers of this blog already know, many of us are currently in San Francisco attending the annual meeting of our bricks and mortar mother ship, the Association of American Law Schools. That meeting has been the subject of some controversy this year, as its official home is San Francisco's Hilton Union Square Hotel, which has been the subject of a union-organized boycott for over a year now.
Unfortunately, this is not the sort of situation that lends itself to neutrality. The workers are encouraging consumers to boycott the affected hotels rather than striking. Consumers thus choose whether to side with management or with the union by booking at the Hilton or booking elsewhere. And the union faces a challenge because without a strike and picket lines, boycotted hotels look pretty much like other hotels. You would not know when you walked by or entered the hotel that it is the subject of a labor dispute. Information about the boycott can be found here.
The AALS is caught in the middle, as it made its contractual commitment to the Hilton long before the boycott began and apparently could not back out without incurring very high costs. The AALS's leadership set forth their reasoning for not cancelling or relocating here. Subsequently, the vast majority of section organizers determined that their sessions will be held elsewhere, including two very exciting sessions organized by the Contracts section, as detailed in Keith's post below. I believe that our other regular bloggers will be in attendance, and we would all welcome the opportunity to meet with our readers and discuss ways to improve the blog.
December 30, 2010
AALS Contracts Section Annual Meeting Program
Speaking of next week's AALS annual meeting, please plan to attend the Contracts Section's annual meeting program, Navigating Lombard Street in a Fog: Seeking (or Ignoring) Landmarks of Intent and Context, next Thursday, January 6th, from 2:00 to 5:00 p.m., in the Divisadero Room, Second Floor Level, Parc 55 Wyndham San Francisco Union Square.
The program will consist of two roundtables, during and after which we hope to elicit audience comments and questions. A brief business meeting will follow the program's conclusion.
Intent to Contract and to be Bound by Specific Terms
Thomas W. Joo (UC-Davis), Moderator
Gregory M. Klass (Georgetown), Intent to Contract in Theory and Practice
Qi (George) Zhou (Sheffield), The Use of Implied Intention in English Contract Law
Tal Kastner (J.D., Yale; Ph.D. candidate (English), Princeton), The Persisting Ideal of Agreement in an Age of Boilerplate
Nancy S. Kim (California Western, visiting at Ohio State), Three Faces of Intent in Contract Formation
Jarrod Wong (U. of Pacific/McGeorge), Class Arbitration Waivers: A Case Study of Constructive Intent and the Limits of a Consent-Based Theory of Contract Law
Intended Meaning (and Effect) of "Agreed" Terms
Keith A. Rowley (UNLV), Moderator
Peter Linzer (Houston), The Problem with Plain Meaning and the Distinction Between Actual Intent in Contract Interpretation and Originalism in Constitutional Interpretation
Steven J. Burton (Iowa), Context, Plain Meaning, and the Objective Theory of Contract Interpretation
Adam B. Badawi (Washington U.), Interpretive Preferences and the Limits of the New Formalism
Michelle E. Boardman (George Mason), Insuring Understanding: The Tested Language Defense
December 23, 2010
6th International Conference on Contracts
Stetson University College of Law and Texas Wesleyan School of Law are co-sponsoring the 6th Annual International Conference on Contracts, February 18 and 19, 2011, at Stetson’s beautiful campus in Gulfport, Fla. Similar to previous contracts conferences held at UNLV, McGeorge, South Texas, Texas Wesleyan, and Gloucester, England, this conference is designed to offer scholars and teachers at all experience levels an opportunity to present and discuss recently-published papers, forthcoming papers, works-in-progress, and pedagogical innovations, and to network with colleagues from the U.S and around the globe.
You can register for the conference here.
December 16, 2010
Promises, Promises - Registration is Open
Jeffrey Lipshaw has assembled an impressive roster of speaker for the March 25 symposium at Suffolk: "Contract as Promise at 30: The Future of Contract Theory." He provides this synopsis of the program:
December 03, 2010
Reminder: AALS Contracts Section Call for Proposals
The Executive Committee of the AALS Contracts Section solicits proposals for the Section’s Annual Meeting program Navigating Lombard Street in a Fog: Seeking (or Ignoring) Landmarks of Intent and Context, scheduled for Thursday, January 6, 2011 from 2:00 to 5:00 p.m.
The Topic: Consent supposedly distinguishes contracts from other private or public rights and duties by requiring that each contracting party manifest its intent, at the time it enters into the contract, to be bound to the contract. This program will explore:
♥ whether intent – objectively manifested or otherwise – is or should be an integral part of contemporary contract law, practice, and theory;
♥ the extent to which context affects or should affect a party’s ability to consent, the significance of its manifested consent, or both; and
♥ assuming that intent and context matter, how best to determine and give effect to the parties’ intent in the context of their transaction.
We are particularly interested in fostering discussion of (1) intent to be bound, (2) intent to be bound to specific terms, (3) the intended meaning of agreed terms, (4) intended circumstances under which a party may avoid or delay performing their duties, and (5) intended remedies available or foreclosed if a party does not perform as agreed under circumstances that neither invite nor allow avoidance or delay.
The Program: Inspired by last year’s lively roundtable discussion of pedagogical approaches and by a fairly robust body of recent scholarship relevant to our topic, and paying homage to the increasingly rare, but fondly remembered, two-semester Contracts course, we seek speakers for two (or more) discussion panels, which the planning subcommittee will organize topically. We have secured a 180-minute time slot, which should facilitate a broader, more diverse, and more participatory discussion than the typical 100-minute AALS program permits.
Publication: While we hope that this program will ignite or further fuel already-burning scholarly interest across its broad scope, we do not require an original paper proposal and have not pre-arranged publication of any papers discussed at or arising from the program (although we may explore publishing a program transcript if we can find a suitable venue and all of the speakers consent).
Submitting a Proposal: If you would like to participate as a panelist, please contact program chair Keith Rowley (email@example.com), no later than 12:00 p.m. PST, Monday, December 6th, indicating the aspect(s) of the topic that most interest(s) you; from what perspective(s) you propose to discuss it/them; if applicable, the scholarly work – yours or someone else’s, published or in progress – you plan to draw upon; and how best to contact you between now and December 10. While the program planning subcommittee will reserve some spots for submissions received by the foregoing deadline (and may consider late proposals), we will begin to review proposals as we receive them and may begin extending offers as early as Monday, November 29th.
We apologize for the short notice, but hope to capitalize on it by attracting participants who might have been unwilling or unable to commit themselves in September or early October or who, like some of us, were stymied by the ongoing labor strife at the AALS headquarters hotel. We are meeting; we are meeting elsewhere; and we ask that you help make this a well-attended, informative, and interactive program.
Thank you for your consideration.
[Keith A. Rowley]
November 10, 2010
Our beloved Mother Ship, the Association of American Law Schools, has announced that Elwood Gordon Gee, the President of Ohio State University, will be a featured speaker at the group's annual barn raising and bean feed, which will take place this year in San Francisco. Gee, who holds the U.S. record for most university presidencies (West Virginia, Colorado, Ohio State, Brown, Vanderbilt, and Ohio State again) is said to be the highest-paid public university president in the country, at over $800,000 a year. (Left, Gee with OSU's homecoming queen and king.)
He might have some interesting things to say, since he's been battling to cut costs at OSU, where he's been working to evade costly government regulations and bring more commercial practices to the school. In a recent piece in the OSU student newspaper, Gee says he found that OSU deals annually with about 35,000 vendors, or about 34,000 more than Ford Motor Co. (more vendors mean much more paperwork and administrative time), and argues that burdensome construction regulations drive up costs unnecessarily.
Those processes are not the only forces hindering OSU's productivity. Government regulations on construction are another hurdle the university must jump.
OSU received permission for ProjectONE, the $1 billion renovation and expansion of the OSU Medical Center, to be exempt from those regulations, Gee said.
"Because of this, we stand to save at the very least 15 percent in total expenditures and will be able to complete the project much more quickly," he said.
Gee said ProjectONE demonstrates the savings and improved productivity afforded to institutions that are free from external control.
People in the private sector make those claims all the time. It's interesting to see these points raised by a man who's been running nonprofit institutions since I was in law school.
P.S. One alternative Columbus paper says it has a list of vendors the university wants to cut off, and one of the is the Order of the Coif.
October 25, 2010
Conference Announcement and Call for Papers: Annual Contracts Conference in Gulfport, Florida
The Stetson University College of Law will host the 6th Annual International Conference on Contracts, February 18th and 19th, 2011, at Stetson’s beautiful campus in Gulfport, Florida. Similar to prior contracts conferences held at UNLV, McGeorge, South Texas, Texas Wesleyan, and Gloucester, England, this conference is designed to afford scholars and teachers at all experience levels an opportunity to present and discuss recently-published papers, forthcoming papers, works-in-progress, and pedagogical innovations, and to network with colleagues from the U.S and around the globe.
Call for Papers and Panels: We invite paper, presentation, and panel proposals exploring any aspect of contract law, theory, and policy (full panel proposals, with topics and participants, are especially welcome). The topic range is intentionally broad to allow for the fullest exploration of things contractual. Past programs have included panels on “traditional” contracts topics (e.g. remedies, formation, and defenses) and on contract-related subjects (insurance, consumer law, commercial law, dispute resolution, family law, and restitution). Papers have also included a variety of perspectives on law, from law-and-economics (behavioral and neo-classical), to international and comparative contracting, to historical, jurisprudential, empirical, institutional, and many other perspectives. We also solicit volunteers to serve as moderators or discussants for panels that are not "packaged deals." Proposals are due by December 15th.
The conference hotel will be the Tradewinds Resort in nearby St. Pete Beach. A block of rooms is reserved for the conference, with rates starting at $159 (suites and other rooms are available for somewhat higher rate); just ask for the Stetson College of Law Contracts Conference when making your reservation. The Tradewinds is a great location for families and the conference rate applies through the weekend if people want to stay and enjoy the Florida sun. The hotel phone number is 800-360-4016, and the webpage is http://www.tradewindsresort.com.
We are finalizing conference registration details and the web registration process, and will follow up shortly with the link to the conference webpage. We expect the registration cost will be about $200.
All paper, panel, and presentation proposals should be sent to Jamie Fox by email at fox [at] law [dot] stetson [dot] edu or by land to Stetson University College of Law, 1401 Gulfport, FL 33707.
Hope to see you there!
[Meredith R. Miller]
BU to host conference on fiduciary duties
Fiduciary duties are imposed by law, but their scope is defined by contract. The border between duties assumed by agreement and those imposed by law can get fuzzy. Few legal writers have spent more time exploring the concept of trust -- the basis for fiduciary duties -- than Boston University's Tamar Frankel (left). BU will host a conference "inspired by" her work, "The Role of Fiduciary Law and Trust in the 21st Century." It takes place this Friday (October 29, 2010). Here's the description:
Fiduciary law is designed to encourage people to rely on experts and other fiduciaries, to facilitate fair and efficient terms of those relationships, and to prevent (and provide remedies for) abuse of power entrusted to the fiduciary. This Conference highlights the nature and scope of fiduciary law, and its relationship to other legal doctrines and categories. It considers how fiduciary law can be illuminated by viewing it through the lens of such disciplines as economics, psychology, history, political science, and philosophy. It also investigates current debates about recognizing fiduciary duties in the determination of executive compensation, in the prohibition of insider trading under the federal securities laws, in the largely unregulated world of securities and mortgage broker-dealers, and in modern capital structure and governance. It further explores the relevance of fiduciary law principles to the abuse of power by public officials and to other issues of democratic legitimacy, as well as the relevance of constraints on political power to the duties of private actors.
Panelists include Margaret Brinig (Notre Dame), Deborah DeMott (Duke), Alan Feld (Boston U.), Joshua Getzler (Oxford), Wendy Gordon (Boston U.), Richard Holton (MIT–Philosophy), Laurence Kotlikoff (Boston U.-Economics), Arthur Laby (Rutgers-Camden), Donald Langevoort (Georgetown), Ethan Leib (UC-Hastings), Donna Nagy (Indiana-Bloomington), Kevin Outterson (Boston U.), James Post (Boston U.-Management), Larry Ribstein (Illinois), David Seipp (Boston U.), Kenneth W. Simons, (Boston U.), Eric Sirri (Babson-Finance), Robert Sitkoff (Harvard), Frederick Tung (Boston U.), Cheryl Wade (St. John's), David Walker (Boston U.), and Charles Whitehead (Cornell).
October 21, 2010
Porter on natural law and legal authority
If you're in the Philadelphia area tomorrow, there's an interesting symposium going on at Villanova. The Joseph T. McCullen Symposium on Catholic Social Thought and Law will focus on Jean Porter's forthcoming book Ministers of the Law: A Natural Law Theory of Legal Authority. Porter (left), a professor of law and professor of theology at Notre Dame Law School, will give the opening address at 9:00 a.m.
Among the panelists in the day-long program are Patrick McKinley Brennan (Villanova), Michelle Madden Dempsey (Villanova), Fr. Kevin Flannery (Pontifical Gregorian University), Bradley Lewis (Catholic), William Mattison III (Catholic), Francis Mootz III (UNLV), Michael Moreland (Villanova), Penelope Pether (Villanova), Maris Köpcke Tinturé (Oxford), and Nicholas Wolterstorff (Yale). Registration here.
October 16, 2010
A good time was had by all
I'm on the way back to Fort Worth -- enjoying the free WiFi at Philadelphia International Airport -- after a great one-day conference at Western New England’s Blake Law Center. The conference marked the 35th anniversary of one of the casebook staples on fiduciary law, Wilkes v. Springside Nursing Home, Inc., 370 Mass. 842 (1976).
Wilkes involved four men who had gone into business together to run a nursing home. They began as a partnership in 1951, then (on the advice of an attorney) formed a corporation to protect themselves from liability. Each of the four owned an equal share of the venture, each too a salary, and each served as a director. Some time later, the four had a falling-out. Wilkes’s fellow shareholders—Quinn, Riche, and Conner—excluded him from the board and fired him, leaving him with no way to get any economic value from his investment.
Under partnership law, Wilkes’s expulsion would have triggered a dissolution, and he would have been able to get the fair market value of his shares or even (if he chose to outbid the other three) take over the nursing home. Under corporate law, however, Wilkes had no claim. Shareholders ordinarily do not owe each other fiduciary duties; a shareholder has no right to sit on the board, nor does he have the right to employment. The case looked like a sure loser.
But the Massachusetts Supreme Judicial court held that a closely held corporation was essentially just a partnership which incorporated to get limited liability. The court ruled that the other shareholders in the nursing home owed Wilkes fiduciary duties, and that he was entitled to show that his "reasonable expectation" was that he would be entitled by his ownership interest to continued employment and a role in management. Since the decision more than half of U.S. states have adopted some version of the Wilkes approach.
Eric Gouvin of WNE did a terrific job of putting the panels together. All of the papers presented at the conference will be published in a symposium in the Western New England Law Review, which will be a must-read for those of us who teach Business Organizations. When I get a few minutes I’ll give you my take on the most interesting aspects of the conference.
October 12, 2010
Spiritual Exercises and the Contemporary Academy
July 09, 2010
Another 2011 Conference: Save the Date!Mark your calendars for another promising conference: "Contract as Promise" Symposium on March 25, 2011 at Suffolk University School of Law in Boston. Jeffrey Lipshaw provides this overview, and promises (sorry!) further details:
In 1981, Professor Charles Fried published a book on contract theory entitled Contract as Promise. For almost thirty years, the book has been the seminal work on the moral or deontological justification for the state's enforcement of private promises. No scholarly discussion of the field can be complete without addressing its claims, whether one agrees or not with its original and provocative stand.
On Friday, March 25, 2011, Suffolk University Law School in Boston will mark the thirtieth anniversary of the book's publication with a day-long symposium, "Contract as Promise at 30: The Future of Contract Theory." After reflections from Professor Fried, some of the academy's foremost contract theorists will offer papers and commentary, with ample opportunity for questions and discussion. Participants presently scheduled include the Honorable Richard Posner, Randy Barnett, Barbara Fried, T.M. Scanlon, Jean Braucher, Richard Craswell, Avery Katz, Henry Smith, Lisa Bernstein, Seana Shiffrin, Daniel Markovits, Juliet Kostritsky, John C.P. Goldberg, Rachel Arnow-Richman, Curtis Bridgeman, Nathan Oman, Roy Kreitner, Gregory Klass, Carol Chomsky, and Robert Scott.
This is an opportune moment to step back, review the alternative approaches to contract theory that have developed since 1981, and to offer views about future doctrinal or inter-disciplinary developments, whether based in moral philosophy, welfare economics, sociology, or other disciplines. The papers and proceedings will be published in a forthcoming issue of the Suffolk Law Review.
[Meredith R. Miller]
July 01, 2010
Save the Date!Stetson Law School. Save the Date!
A more formal announcement is forthcoming, with details about registration, hotel accommodations and the call for papers. In the interim, if you have any questions, you can contact Jamie Fox (and that's Fox, not Foxx).
[Meredith R. Miller]
March 30, 2010
Contracts Limerick of the Week: Langdellian Limericks
Many who attended the Spring Contracts Conference at UNLV saw a presentation of the "Langdellian Limericks," in which the author explains to his dubious readers the educational purposes to which legal Limericks can be deployed. A few asked, if only to be polite, if the complete collection of contracts Limericks was available in one convenient place. The answer at the time was "no." But I have now revised the draft to include an appendix with my complete contracts oeuvre. The paper can be downloaded from SSRN here. Here is the abstract:
Theirs is no lone cri de coeur.
Now bashing Langdell’s de rigueur.
Knowing case law alone,
A young lawyer is prone
To resemble a high-priced poseur.
March 17, 2010
Fault Lines in Contracts Theory III: Michael G. Pratt
This is the third in a series of posts on recent scholarship relating to the relationship between contract and fault or between contract and promissory obligation. Yesterday, we posted about Steven Feldman’s critique of Seana Shiffrin. On Monday, we discussed Martha Ertman’s book chapter, “The Productive Tension between Official and Unofficial Stories of Fault in Contract Law.” Today, we discuss Michael G. Pratt’s presentation at the UNLV Spring Contracts conference on “The Obligation Conception of Promising.” Once again, no electronic version of Professor Pratt’s presentation is currently available on the Internet. However, one can look at his earlier essay, “Contact: Not Promise” which appeared two years ago in the Florida State University Law Review (35 Fl. St. Univ. L. Rev. 801 (2008)). In order to establish the context for a discussion of Professor Pratt’s current project, it makes sense to set out his main argument from that earlier piece.
“Contract: Not Promise,” like Steven Feldman’s article discussed yesterday, is a response to Seana Shiffrin’s work. Professor Pratt begins with the provocative claim that that the commissive speech act that gives rise to a contract is not the same as the kind of speech act that gives rise to a moral obligation to others. In short, contracts are not promises. Rather, contracts entail undertakings, but the undertakings are distinct from the undertakings with which morality is concerned. Professor Shiffrin errs, according to Professor Pratt, because she assumes that contracts law is about enforcing promises and seeks to justify the divergence of legal and moral rules regarding such enforcement. Professor Pratt escapes this difficulty by arguing that the law on contracts is not concerned with promises as such. Professor Pratt argues that contracts are not promises in the narrow sense in which Professor Shiffrin understands promises because undertakings to fulfill legal obligations entail no moral obligation to do so. In order to demonstrate this, he proposes a hypothetical contract in which the parties agree that they are contractually bound respectively to perform a service and to pay for that service. The contract also specifies that neither party is promising to perform and has no moral obligation to do so. A promise necessarily entails a moral obligation for Professor Pratt, or at least an attempt on the part of the promisor to manifest an intention to acquire a moral obligation.
Professor Pratt considers the objection that, given our objective theory of contract formation, the purported promisee might believe that a contractual undertaking entails a promise even where no moral obligation was intended. Such “ostensive promises” might indeed entail a moral obligation to perform, but the moral obligation is not, Professor Pratt insists, that the person committing herself to an undertaking perform a promise. Rather, there is a moral obligation to perform an undertaking that could be reasonably mistaken for a promise. (815) Professor Pratt also concedes that it may well be that most contractual undertakings are also moral obligations, but the point is that the law enforces only the legal obligation and not the moral one. (816)
In his conference presentation, Professor Pratt further explores the nature of promissory obligation and clarifies his view that the concept of a promise requires that it has particular moral significance. Promise is linked to moral obligation, according to Professor Pratt, just as our notion of “hammer” cannot be expressed without reference to nails. Professor Pratt proceeds to offer both a phenomenological and a communicative argument in favor of what Joseph Raz has called the obligation concept of promising.
Professor Pratt begins by rejecting what he calls the “ceremonial account” of promising. We do not make promises by reciting some specified incantatory language. Rather, in most cases, we make promises through any communicative act that gives the promisee additional assurances that we will do the thing that we have stated we will do. A promise is thus a communicative act in which the promisor binds herself to do X because she says she will do X. The philosophical puzzle is to understand how a communicative act can effect such a normative change.
Philosophers whom Professor Pratt labels “deflationists” escape this puzzle by focusing on the fact that promises are relied on. There is nothing particular to the immorality of promise-breaking, argue such deflationists; it is wrong to break a promise for the same reasons that it is generally wrong to harm others. But this approach misses an essential component of Professor Pratt’s understanding of promises, the promisor’s intent to bind herself through promising.
Professor Pratt illustrates the advantages of the obligation conception of promising with an example. Imagine an assurance to do X characterized as “information, prediction or advice” but not a promise. In fact, the non-promisor specifically notifies the would-be promisee that she is under no obligation to the latter but will do X for the sake of interested third parties. Professor Pratt concedes that the assurances can give rise to moral obligations, but they are not promissory in nature. The person undertaking the obligation has made no promises to the third parties and the moral obligation to the would-be promisee sounds in reliance, not in promise, because there was no promise. Professor Pratt thus claims to have refuted the deflationist account, which could not explain why there would be no promissory obligation in this context, and to have demonstrated the truth of the obligation conception of promise.
Section § 21 of the Restatement (2d) provides that an express statement of intention to be bound is not required but an express statement not to be bound is effective. One may thus be bound involuntarily, or at least without any expression of intent to bound. Professor Pratt contends that promissory obligations that are disclaimer sensitive must be voluntary. This latter claim reinforces the argument of Professor Pratt’s “Contract: Not Promise” by specifying another way that promises diverge from contractual obligations. Here, Professor Pratt goes beyond his earlier claim that the law of contracts is not concerned with enforcing moral obligations. He now argues that promises, by their very nature, are unlike contractual undertakings.
Professor Pratt’s writings are certainly thought provoking. They provide interesting ways to think about contractual obligation – and to think about teaching contracts – that may not make any difference at all when it comes to deciding cases. If I understand Professor Pratt correctly, while the R.2d may be a bit sloppy in characterizing contracts as promises that the law enforces, the sloppiness does no harm because courts in fact enforce not moral obligations but legal undertakings. They may also enforce other kinds of moral obligations – such as those arising from reliance – but that is different from enforcing moral obligations that sound in promise. But the law need not identify the sorts of obligations it is enforcing or its moral grounds for doing so with the kind of specificity Professor Pratt’s analysis requires. It merely needs to identify sources of law adequate to ground decisions.
March 08, 2010
Protecting Your Passwords From Beyond the Grave
Fellow conferee Sid DeLong has called our attention to a possible, but perhaps problematic solution. There is a service called Legacy Locker. Among other things, Legacy Locker gathers and tests your online passwords for you and then passes them on to your personal representative or named beneficiary when you die. More information on the service can be found here. Please note: although the name of the principal behind Legacy Locker is similar to that of the undersigned, we at the blog intend neither to endorse nor to criticize the product. We just think it is an interesting example of private ordering that could at least potentially save the bereaved from the kinds of adversarial wrangling described by Professor Preston.
In the specific case described by Professor Preston, the parents of a beloved child wanted to recover some of her e-mail communications, and Professor Preston believes that they had a legal right to such communications. However, in many cases, though not the case Professor Preston discusses, minors have passwords on their internet accounts precisely because they want to keep those communications private from their parents. That reasonable assumption could be easily overcome if children specified, through Legacy Locker or some other service what was to become of their accounts in case of their demise.