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The Failure Of Economic Interpretations Of The Law Of Contract Damages, Nathan B. Oman
The Failure Of Economic Interpretations Of The Law Of Contract Damages, Nathan B. Oman
Washington and Lee Law Review
The law of contracts is complex but remarkably stable. What we lack is a widely accepted interpretation of that law as embodying a coherent set of normative choices. Some scholars have suggested that either economic efficiency or personal autonomy provide unifying principles of contract law. These two approaches, however, seem incommensurable, which suggests that we must reject at least one of them in order to have a coherent theory. This Article dissents from this view and has a simple thesis: Economic accounts of the current doctrine governing contract damages have failed, but efficiency arguments remain key to any adequate theory …
The Search Interest In Contract, Joshua A.T. Fairfield
The Search Interest In Contract, Joshua A.T. Fairfield
Scholarly Articles
Parties often do not negotiate for contract terms. Instead, parties search for the products, terms, and contractual counterparties they desire. The traditional negotiation centered view of contract continues to lead courts to try to construe the meaning of the parties where no meaning was negotiated, and to waste time determining the benefits of bargains that were never struck. Further, while courts have ample tools to validate specifically negotiated contract terms, courts lack the tools to respond to searched-for terms. Although the law and literature have long recognized that there is a disconnect between the legal fictions of negotiation and the …