Law Commons^™

Reconsidering Contractual Consent: Why We Shouldn't Worry Too Much About Boilerplate And Other Puzzles, Nathan B. Oman

Nathan B. Oman

Our theoretical approaches to contract law have dramatically over-estimated the importance of voluntary consent. The central thesis of this article is that voluntary consent plays at best a secondary role in the normative justification of contract law. Rather, contract law should be seen as part of an evolutionary process of finding solutions to problems of social organization in markets. Like natural evolution, this process depends on variation and feedback. Unlike natural evolution, both the variation and the feedback mechanisms are products of human invention. On this theory, consent serves two roles in contract law. First, consent makes freedom of contract …

Promise And Private Law, Nathan B. Oman

Nathan B. Oman

This essay was part of a symposium on the thirtieth anniversary of the publication of Charles Fried's Contract as Promise and revisits Fried's theory in light of two developments in the private-law scholarship: the rise of corrective justice and civil-recourse theories. The structural features that motivate these theories-the bilateralism of damages and the private standing of plaintiffs-are both elements of the law of contracts that Contract as Promise sets out to explain. I begin with the issue of bilateralism. Remedies--in particular the defense of expectation damages--occupy much of Fried's attention in Contract as Promise, and he insists that this particular …

Unity And Pluralism In Contract Law, Nathan B. Oman

Nathan B. Oman

No abstract provided.

The Need For A Law Of Church And Market, Nathan B. Oman

Nathan B. Oman

This Essay uses Helfand and Richman’s fine article to raise the question of the law of church and market. In Part I, I argue that the question of religion’s proper relationship to the market is more than simply another aspect of the church-state debates. Rather, it is a topic deserving explicit reflection in its own right. In Part II, I argue that Helfand and Richman demonstrate the danger of creating the law of church and market by accident. Courts and legislators do this when they resolve questions religious commerce poses by applying legal theories developed without any thought for the …

The Failure Of Economic Interpretations Of The Law Of Contact Damages, Nathan B. Oman

Nathan B. Oman

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 …

Markets As A Moral Foundation For Contract Law, Nathan B. Oman

Nathan B. Oman

No abstract provided.

Introductory Remarks: Contract Law And Morality, Nathan B. Oman

Nathan B. Oman

No abstract provided.

Indiana And Doux Commerce, Nathan B. Oman

Nathan B. Oman

No abstract provided.

Corporations And Autonomy Theories Of Contract: A Critique Of The New Lex Mercatoria, Nathan B. Oman

Nathan B. Oman

One of the central problems of contracts jurisprudence is the conflict between autonomy theories of contract and efficiency theories of contract. One approach to solving this conflict is to argue that in the realm of contracts between corporations, autonomy theories have nothing to say because corporations are not real people with whose autonomy we need to be concerned. While apparently powerful, this argument ultimately fails because it implicitly assumes theories of the corporation at odds with economic theories of law. Economics, in turn, offers a vision of the firm that is quite hospitable to autonomy theories of contract. The failure …

A Pragmatic Defense Of Contract Law, Nathan B. Oman

Nathan B. Oman

No abstract provided.

Is It Time For The Restatement Of Contracts, Fourth?, Peter A. Alces, Christopher Byrne

Christopher Byrne

No abstract provided.

Unintelligent Design In Contract, Peter A. Alces

Peter A. Alces

Scholars have expended considerable energy in the effort to "discover" a normative theory of Contract. This Article surveys that effort and concludes that something fundamental about Contract has been missed and has frustrated the search from the outset. Succinctly, Contract doctrine resists the neat formulation theory requires. Theorists' perspectives on Contract may be generalized as attempts to impute either deontology or consequentialism to the Contract law. Focusing largely on deontological constructions of Contract, this Article demonstrates the inconsistencies among the extant heuristics-promise, reliance, and transfer-and more importantly, the failure of any of those constructions to provide a coherent explanation of …

They Can Do What!? Limitations On The Use Of Change-Of-Terms Clauses, Peter A. Alces, Michael M. Greenfield

Peter A. Alces

No abstract provided.

The Moral Impossibility Of Contract, Peter A. Alces

Peter A. Alces

No abstract provided.

Reinventing The Wheel, Marion W. Benfield Jr., Peter A. Alces

Peter A. Alces

No abstract provided.

Statutory Personal Property Lease Law In Alabama, Peter A. Alces, P. Cade Newman

Peter A. Alces

No abstract provided.

Regret And Contract "Science", Peter A. Alces

Peter A. Alces

No abstract provided.

On Discovering Doctrine: "Justice" In Contract Agreement, Peter A. Alces

Peter A. Alces

No abstract provided.

Is It Time For The Restatement Of Contracts, Fourth?, Peter A. Alces, Christopher Byrne

Peter A. Alces

No abstract provided.

Guerilla Terms, Peter A. Alces

Peter A. Alces

No abstract provided.

Contract Reconceived, Peter A. Alces

Peter A. Alces

No abstract provided.

Carrying A Good Joke Too Far, Peter A. Alces, Jason M. Hopkins

Peter A. Alces

No abstract provided.

The World Of Contract And The World Of Gift, Melvin Aron Eisenberg

Melvin A. Eisenberg

Examines the social and legal implications of the treatment of donative promise as an absolute enforceable contract in the United States. Evolution of the donative-promise doctrine; Case laws on donative promise; Moral and social significance of donative promises; Substantive bases for donative-promise principle.

Mistake In Contract Law, Melvin A. Eisenberg

Melvin A. Eisenberg

Develops the legal rules that should govern mistake in contract law on a functional basis. Types of mistake that are relevant in contract law on the basis of their character; Reasons of efficiency and morality that apply to cases in which a non-mistaken party knew or had reason to know that a payment was mistakenly made; Distinction between mistaken factual assumptions and evaluative mistakes.

The Principle Of Hadley V. Baxendale, Melvin Aron Eisenberg

Melvin A. Eisenberg

No abstract provided.

Expression Rules In Contract Law And Problems Of Offer And Acceptance, Melvin Aron Eisenberg

Melvin A. Eisenberg

The issue of interpretation is central to contract taw, because a major goat of that body of law is to facilitate the power of self-governing parties to further their shared objectives through contracting. Modern contract law has developed a set of general principles of interpretation that give a place to both objective and subjective elements, and must be applied on an individualized basis. However, a number of narrower black-letter rules give a purely objective and standardized interpretation to certain kinds of expressions, and these standardized interpretations may often differ from the meanings such expressions would be given under the general …

Disclosure In Contract Law, Melvin A. Eisenberg

Melvin A. Eisenberg

Develops the Disclosure Principle that should govern disclosure in contract law. Reasons for requiring disclosure; Concept of a tacit assumption; Paradigm cases that exemplifies the disclosure problem.

A New Look At Contract Mistake Doctrine And Personal Injury Releases, Grace M. Giesel

Grace M. Giesel

One might expect a court to look very skeptically when a party to a personal injury release asks a court to set aside the release. But many courts have reacted atypically when injured parties who have settled their claims have sought to have those releases set aside on the basis of a lack of understanding or knowledge about the injury. Absent facts supporting a claim of fraud or duress, injured parties have turned to the mistake doctrine for relief.

The New Wal-Mart Effect: The Role Of Private Contracting In Global Governance, Michael P. Vandenbergh

Michael Vandenbergh

No abstract provided.

הורות משפטית מן הדין ומן הצדק - Legal Parenthood - Law And Justice, Yehezkel Margalit

Hezi Margalit