Jeffrey M. Lipshaw (Suffolk University Law School) has posted Metaphors, Models, and Meaning in Contract Law on SSRN. Here is the abstract:
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Why does there seem to be such a wide gap between the subject matter of the usual first-year contracts course and what practitioners (particularly transactional lawyers) actually experience? My claim is that it is the result of a powerful theoretical system whose hallmark is a closed linguistic system - in the coinage of one noted scholar, "an epistemic trap." The subject matter of contract law requires dealing with legal truth not just as a coherent body of doctrine, but also correspondent in some way to actual self-legislation of the parties. I propose escaping the trap with a turn to metaphor theory. The underlying metaphor common to prevailing conceptions of contract law, and which demands some form of correspondent truth from the contract (and contract law), is "contract as model of the transaction." I suggest alternative metaphors of categories as containers, ideas (including "the meeting of the minds") as objects, and the transaction life cycle as a journey. The goal is to focus on the "subjective to objective" process of the transactional life cycle, and to consider the perspectives of the participants in or observers of the transactional life cycle, and the models and metaphors that shape the conceptual frames from within which those participants and observers perceive and make use of the legal doctrine.
Very interesting & recommended.
