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Contract And Innovation: The Limited Role Of Generalist Courts In The Evolution Of Novel Contractual Forms, Ronald J. Gilson, Charles F. Sabel, Robert E. Scott
Contract And Innovation: The Limited Role Of Generalist Courts In The Evolution Of Novel Contractual Forms, Ronald J. Gilson, Charles F. Sabel, Robert E. Scott
Faculty Scholarship
In developing a contractual response to changes in the economic environment, parties choose the method by which their innovation will be adapted to the particulars of their context. These choices are driven centrally by the thickness of the relevant market – the number of actors who see themselves as facing similar circumstances – and the uncertainty related to that market. In turn, the parties' choice of method will shape how generalist courts can best support the parties' innovation and the novel regimes they envision. In this Article, we argue that contractual innovation does not come to courts incrementally, but instead …
Contract Design And The Structure Of Contractual Intent, Jody S. Kraus, Robert E. Scott
Contract Design And The Structure Of Contractual Intent, Jody S. Kraus, Robert E. Scott
Faculty Scholarship
Modern contract law is governed by a two-stage adjudicative regime – an inheritance of the centuries-old conflict between law and equity. Under this regime, formal contract terms are treated as prima facie provisions that courts can override by invoking equitable doctrines so as to substantially "correct" the parties' contract by realigning it with their contractual intent. This ex post judicial determination of the contractual obligation serves as a fallback mechanism for vindicating the parties' contractual intent whenever the formal contract terms fall short of achieving the parties' purposes. Honoring the contractual intent of the parties is thus the central objective …