Thursday, September 10, 2020
Tun-Jen Chiang recently published an article entitled, Private Rules and Standards, Wills, Trusts, & Estates Law ejournal (2020). Provided below is the abstract to the Article.
There is an enormous literature on the question of whether legal directives should take the form of rules or standards. This literature generally focuses on public laws such as statutes and regulations. Private legal instruments such as patents, contracts, and wills are given little thought. This Article analyzes the choice in the private law context.
Beyond making the obvious-yet-overlooked point that the rules/standards choice applies to privately-made laws, the Article makes two contributions. First, it explores the normative arguments for rules and standards when applied to privately-made laws, which are sometimes similar to, and at other times different from, the well-known arguments made in the context of public laws. Second, the Article asks a positive question: will drafters actually choose a rule or standard, given the drafter’s private incentives? The Article answers by providing a model of how clashing incentives between private drafters (who pursue self-interested goals) and courts (who resist those goals) shapes the rules/standards choice. It then explains how this model helps explain drafting choices and interpretative doctrine with respect to contracts, wills, and patents.