Wednesday, January 12, 2022
Often, when we have discussions on the ContractsProf Listserv, Victor Goldberg (left) has views. That is not unusual in our guild. What is unusual and surprising is how often Professor Goldberg has written about the precise issue or the case up for discussion. Usually, I have not read the Goldberg article in question. That is a Bildungslücke that I intend to address this semester. As I do, I will share short summaries of chapters from his two recent books, Rethinking Contract Law and Contract Design (RCL) and Rethinking the Law of Contract Damages. (RLCD)
The books have a theme. Professor Goldberg is an economist. He came to contracts with the assumption that contracts law was efficient. Decades of teaching doctrine convinced him that contracts doctrine is often inefficient, and that in the context of complex transactions, lawyers earn their keep, in part, by helping their clients overcome doctrinal hurdles to optimal outcomes. But attorneys cannot always negotiate around doctrinal inefficiencies. The inefficiencies are "sticky" in various ways, at times because some rules are mandatory, at times because of the transactional costs involved in getting around them, at times because it can be hard to convince judges that the parties have agreed to non-standard terms or that breaching a contractual obligation does not entail a moral failing (RCL, 1). Another problem that Professor Goldberg thematizes in his discussion of doctrine and caselaw is the propensity of judges to misstate facts in their legal opinions (RCL, 2).
My aim this semester is to post once or twice a week on chapters from these books. As I am teaching defenses and damages this semester, I am also hoping that Professor Goldberg's insights will provide me with new ways to approach this material. One the greatest challenges I face with my students is getting them to move beyond an understanding of the doctrine to an understanding of the effect of doctrine on the underlying transactions. I am hoping that Professor Goldberg's scholarship will help me to help my students start thinking about when existing doctrines facilitate the transactions their clients are contemplating and when they need to find lawyerly ways to engage in private legislation and contract around default rules that do not suit their clients' needs.