Legal Theory Blog

Kar on Contractualism and Contract Law

Robin Bradley Kar (Loyola Law School Los Angeles) has posted Contractualism About Contract Law v.2 on SSRN.  Here is the abstract:

Modern contract theory is in a quandary. Whereas consequentialist theorists typically point to principles of efficiency-maximization to account for the rules of modern contract law, and deontological theorists typically point to considerations of liberty or the ordinary morality of promise-keeping, none provides a satisfying and unified account of three central and highly stable aspects of modern contract law. These are: first, the standard remedies granted for contractual breaches; second, the centrality of the consideration doctrine; and, third, the tension between legal doctrines that require courts to defer to parties' voluntary assent when determining the existence or content of contractual obligations and doctrines that allow courts to police bargains for fairness. In this Article, I argue that contractualism - especially as elaborated in connection with Stephen Darwall's recent work on the second-person standpoint - has the power to harmonize these doctrines.

In most other areas of normative inquiry, contractualism has held a solid place, but the view is conspicuously absent in most theoretical debates about modern contract law. To explain this absence, I canvass a number of reasons why contractualism might appear to be an unpromising theoretical standpoint from which to account for the rules of modern contract law. I argue that these considerations are, however, better understood as placing special constraints on the form that any satisfying contractualism about contract law must take. In the remainder of the Article, I then develop an account that meets these special constraints.

Given the robustness of efficiency-based explanations of contract law doctrine, one important constraint will be that contractualism provide a more robust explanation of doctrine than efficiency theorists can. In the substantive portions of the Article, I therefore argue that there are aspects of the standard contract law remedies - including the expectation damages remedy - that cannot in fact be fully explained or justified in terms of familiar notions like "efficient breach." These same aspects can, however, be accounted for from within the second-person standpoint. If Darwall is right, then this standpoint commits to a contractualist account of what we owe to one another. In the remainder of the Article, I therefore develop a contractualist account of modern contract law that is, I argue, more robust than both current efficiency and promise-based theories - at least in relation to the three central doctrines under discussion.

The resulting view promises to reconcile modern liberalism with a number of modern contract law's puzzling features. It also promises to help us identify the appropriate role and limits of doctrines that allow or require courts to police private bargains for fairness. Together, these facts warrant, at minimum, further time and attention to developing the view and extending it to a broader range of doctrine. Contractualism about Contract Law should - I argue - hold a central place in theoretical discussions of modern contract law.

Highly recommended!

Smithon Gordely on Private Law

Stephen A. Smith (McGill University - Faculty of Law) has posted Troubled Foundations for Private Law: A Review Essay of 'The Foundations of Private Law' by James Gordley (Canadian Journal of Law and Jurisprudence, Vol. 21, No. 2, 2009) on SSRN.  Here is the abstract:

Over the past three decades, James Gordley has written a series of articles and books arguing that different parts of western private law, both civil and common, can be explained using the ideas of a group of 16th century neo-Aristotelian Spanish writers known as the late scholastics. The Foundations of Private Law (2006) is the culmination of this ambitious project. The opening chapters provide an overview and defence of the late scholastics' legal theory and the project's multi-jurisdictional scope. Subsequent chapters apply the theory to property, tort, contract and unjust enrichment law in the United States, France, England, Germany, and Italy. Many of the discussions draw on previous work, but Foundations is an important addition to Gordley's scholarship. For the first time, Gordley defends the scholastics' theory as the best general theory of private law.

Drawing on two millennia of legal, philosophical, and political sources from a range of Western countries, Foundations is an impressive work of comparative and historical scholarship. But as a theory of private law it fails. Thanks in part to Gordley's earlier work the concepts of distributive and commutative justice that he uses to explain, respectively, property law and the law of obligations (contract, tort, and unjust enrichment) are now familiar to private law scholars. But whatever value they may have in other accounts, as explained in Foundations they are either meaningless or inconsistent with any plausible view of what the law is or should be. In Gordley's account, distributive justice is so heavily qualified as to be indistinguishable from wealth maximization. As for corrective justice, it is not clear why, if its point is to preserve distributive justice (as Gordley believes), we should care about it, nor how it can explain why the rules of tort, contract, and unjust enrichment are only concerned with certain ways in which distributive holdings can be upset and why their effect is often to further redistribute those holdings.

Calnan on Duty in Tort Law

Alan Calnan (Southwestern Law School) has posted Duty and Integrity in Tort Law on SSRN.  Here is the abstract:

The tort concept of duty lacks integrity in virtually every popular sense of that term. It is at once incomplete, unharmonious and unbeholden to any ethical principle or moral standard. Although these problems are interrelated, each corrupts tort jurisprudence in its own unique way.

The incompleteness problem is particularly acute in theories of intentional tort and strict liability, where it is either selectively invoked or completely ignored. While duty holds a more prominent place in negligence, it has been fragmented into myriad specialized obligations which remain mostly in disarray.

Such disunity, in turn, has fostered an even greater problem of disharmony, Tort scholars disagree about what duty is and what it is supposed to do. At one extreme, deontologists see duty as a strict moral obligation that judges must adopt and implement in accordance with natural law. At the other extreme, realists view duty merely as a terminological faýade for a judge's unfettered policy decision that liability should or should not exist. Between these opposed camps lie the pragmatists, who conceive of duties as useful guiding principles, but readily recognize a judge's authority to create new rules whenever social circumstances so require.

Beneath even this collective dissonance lurks the third integrity issue: the moral problem of principle. Besides the deontological view, which grounds duty in exceedingly strong moral principles, each of the remaining camps fail to give principle its due. Because the realists and pragmatists refuse to commit to any specific set of principles - most especially, liberal-moral principles rooted in American history, law, culture and values - their approaches necessarily lack a unifying standard, and so seem doomed to unpredictability, inconsistency and incoherence.

These problems, however, are not intractable. In fact, significant guidance can be found in the work of Ronald Dworkin, whose theory of "law as integrity" provides a methodology for judicial lawmaking and interpretation. Under this theory, judges deciding hard cases must seek to promote liberal values of equality, liberty and due process by interpreting the law in a way that not only squares with past precedent, but also reconciles and strengthens the law's core principles and integrates them into a larger, cohesive framework.

Because tort law is largely judge-made, and the "law" part of torts consists primarily of its scheme of duties, Dworkin's approach seems naturally fitted to the law's current duty conundrum. Still, that fit may not be perfect. While Dworkin views history as mostly irrelevant to modern legal interpretation, the history of tort law may well tell us something quite profound about the law's core principles, their connection to the law's present value system and their role in shaping that system's cultural identity.

For these reasons, I shall offer a modified Dworkinian theory of tort duty that not only fits and justifies the law's present values, doctrines and structures, but also respects and promotes its historical tradition. Part I begins by briefly examining the role of duty in a liberal state. It then explores common law duties in particular, revealing their developmental patterns and exposing their integrity problems. Part II reviews Dworkin's approach to these problems, explaining his theory of "law as integrity" and highlighting some of the problems in his approach. In Part III, the focus shifts to the concept of duty in tort law. After tracing the historical development of duty in torts, it examines the duty concepts in tort's three modern theories of liability. It finds great integrity in intentional torts, a lost integrity in strict liability and the promise of integrity in negligence.

The remainder of the article seeks to fulfill this promise. In Part IV, I examine the history or vertical integrity of negligence's duty concept, exposing several flaws in the modern view. Then, picking up on Dworkin's approach, I explore the horizontal integrity of this concept, identifying in Part V duty's substantive bases and conceptual limits, proposing in Part VI a structured, interpretive analysis, and illustrating in Part VII the application of that analysis in a difficult duty case. Part VIII culminates the discussion by offering a general methodology for handling all negligence duty issues. To put this new metatheory in perspective, the Conclusion highlights its significant features and addresses some of its likely criticisms.

Chung on Promissory Estoppel

John J. Chung (Roger Williams University - School of Law) has posted Promissory Estoppel and the Protection Of Interpersonal Trust on SSRN. Here is the abstract:

This paper examines the role of interpersonal trust in the doctrine of promissory estoppel and the extent to which the law should protect this trust when a promise is made. Should the law protect a promisee's trust in a promisor no matter what and no matter how untrustworthy the promisor may be? Or, should the law encourage promisees to exercise care before trusting a promisor? This article contends that the law should not engage in the maximum protection of interpersonal trust, but should instead concern itself with promoting and protecting an optimal level of trust. A promisee should not prevail simply because he or she trusted the promisor. Instead, the law should ask whether the trust was reasonable and whether it was appropriate. Those who engage in a reckless level of trust should not be protected. The question raised by this approach is how to determine the level of trust that should trigger judicial protection. This article proposes a modest solution. It attempts to establish the endpoints of the continuum along which interpersonal trust should be evaluated. At one end are the situations where trust should be entitled to maximum protection. Such cases include ones where the promisee is engaged in a transaction that he or she cannot avoid, where he or she has no control over the structure of the transaction, and where the promisee has no choice but to trust the promisor (or more accurately, trust the legal system to enforce the promise). Another type of case where trust should be protected includes cases where the parties have developed a long-standing, pre-existing relationship to the point where the promisee has developed a reasonable basis to trust that the promisor will act in a manner consistent with that relationship. At the opposite end are the situations where trust should not be protected, and, indeed, should be discouraged. Trust should not be protected if (1) the promisee could have determined that the promisor was untrustworthy at a low cost to the promisee, or (2) if the promisee could have avoided the harm resulting from a broken promise by taking preventive measures that cost less than the amount of the potential harm.

Two Papers on Convergence in European Contract Law

Jan M. Smits (Tilburg University - Tilburg Institute of Comparative and Transnational Law) has posted Contract Law in the European Union: Convergence or Not? (Sammelband, Vol. 4, pp. 45-65, Europäischer Juristentag, May 2008) on SSRN. Here is the abstract:

This contribution argues that convergence of (European) contract law should not be found in uniform rules, principles or outcomes, but in identifying common sets of arguments to be weighed in different ways in various national jurisdictions. Convergence of law in the European Union should take place at this argumentative level. This view is illustrated by reference to three `converging tendencies', one at the level of rules, one at the level of fundamental rights and one at the level of `common results'. First, the reform of the German law of obligations of 2002 is looked at: the new rules on the unitary concept of breach and on prescription periods are compared with Dutch law and are used to illustrate convergence by way of harmonising rules. Second, the unifying effect of fundamental rights is taken into account. Apart from the well-known contribution of the European Court of Justice to the harmonisation of private law, it is important to see how fundamental rights in national law or as laid down in the European Convention on Human Rights may, or may not, contribute to convergence of national contract law. The third method of convergence looked at in this contribution concerns the influence of European directives on national contract law. In theory, European harmonisation through directives is the most vigorous method of convergence of contract law in the European Union. But reality is different because of considerable differences in the way these directives are implemented in the various European jurisdictions.

Catherine Valcke (University of Toronto - Faculty of Law) has posted Convergence and Divergence between the English, French, and German Conceptions of Contract (European Review of Private Law, Vol. 16, No. 1, pp. 29-62, 2008) on SSRN. Here is the abstract:

This piece aims to highlight the different internal and external perspectives on the English, French, and German law of contractual mistake. While the solutions devised by these three systems in response to mistake issues are functionally equivalent, it is possible to reconstruct the different means internally deployed by each system to reach these solutions into (different) coherent forms of argumentation. Depending on whether one takes an internal or an external perspective, therefore, one could conclude that the three systems are simultaneously converging and diverging.

Sebok on Nagareda on Mass Torts

Anthony J. Sebok (Yeshiva University - Benjamin N. Cardozo School of Law) has posted What Do We Talk About When We Talk About Mass Torts? (Michigan Law Review, Vol. 106, p. 1213, 2008) on SSRN. Here is the abstract:

This is a review of Richard Nagareda's Mass Torts in a World of Settlement (Univ. Chicago Press, 2007). Nagareda's book argues that mass litigation has fundamentally altered the way that the liability system handles claims for compensation, restitution and punishment, and that out rules of civil procedure and legal ethics must change accordingly.

In this review, I praise Nagareda's synthetic and sweeping account of mass tort litigation over the past 25 years, in which he weaves together an account of the settlements arising from asbestos, tobacco, breast implant, Fen-phen and other mass torts. I positively evaluate the reform proposed at the end of the book, which I call the "Leveraging Proposal." It would require lawyers to place into escrow the fees they receive from clients whose cases they settle early in a mass tort, and the court would be permitted to garnish a portion of those fees if similarly situated plaintiffs receive less in future settlements.

My main critique of the book is that the Leveraging Proposal addresses only part of the challenge of mass torts to the contemporary legal system. It deals with the problem identified by the Supreme Court in Amchem and Ortiz. I argue that there are other, equally serious problems raised by mass torts that the Leveraging Proposal does not address, and this limits the value of the book.

Klass on Contractual Implicature

Gregory Klass (Georgetown) has posted Regulating Information in Contractual Relationships on SSRN. Here is the abstract:

While much has been written about how individual rules of contract law impact parties' sharing of information, we do not yet have a general theory of the legal regulation of information in contractual relationships. In his recent article, Taking Information Seriously: Misrepresentation and Nondisclosure in Contract Law and Elsewhere, 92 Va. L. Rev. 565 (2006), Richard Craswell starts in on the project of providing one. This essay critically examines Craswell's arguments and discusses what such a general theory should look like. One of my central theses is that such a theory should keep apart two regulatory approaches: the use of scientific methods to study the informational effects of individual transaction elements, and interpretive approaches, which take as their object the meaning and veracity of such elements. The essay also discusses legal liability for implicit misrepresentations and the role of everyday interpretive norms in the law of misrepresentation in general.

The essay first summarizes what I take to be Craswell's central claims about information sharing, summarized by his rejection of the quantized view of information. I then discuss the similarities and differences between the two contract doctrines that are most obviously designed to regulate information sharing: nondisclosure and misrepresentation. This lays the groundwork for a detailed analysis of Craswell's claims about the law of misrepresentation. Craswell uses Grice's theory of conversational implicature to explain of how separate pieces of information can be bundled together in a single speech act. I argue that Craswell wrongly assumes (contrary to Grice's theory) that it is difficult to divorce implicit misrepresentations from the potentially beneficial speech acts that contain them. This error leads Craswell to overstate the similarities between misrepresentation and nondisclosure. The last part of the essay distinguishes two regulatory approaches, which I label causal-predictive and interpretive. Causal-predictive regulation, which Craswell advocates broader use of, employs the methods of behavioral economics to mandate how transactions should be structured. The law of misrepresentation, I argue, uses a fundamentally different method, one that focuses not on causation but on meaning and veracity. I make some general observations about the proper scope of these different regulatory approaches, their relative merits, and the prospects for combining them in the ways Craswell recommends.

And from the text:

the theory of conversational implicature is not merely an account of conversational etiquette: it also describes the rules that determine a speech act’s meaning in context. The rules’ interpretive function comes to the fore in the case of implicit meanings. When an act’s literal meaning appears to violate one or more maxims, a sort of general Principle of Charity requires that we look for an implied meaning to bring the speech act into conformity with those rules. Consider again the argument that Organ’s silence implicitly represented that there was no news. The Cooperative Principle required (so the seller’s argument would go) that if there was any important news, Organ respond to Girault’s question. More precisely, if there was news, the failure to respond violated the first maxim of quality: make your contribution as informative as required. In the context of the question, it was therefore reasonable to interpret Organ’s silence as representing that there was no news – bringing his behavior into apparent conformity with the conversational maxims. The Gricean maxims are not simply guides to how to behave in conversation. They determine what is said, the meaning of a speaker’s words or actions in context.

Now here is the important point. As Craswell observes, Grice’s maxims themselves involve a sort of conversational cost-benefit analysis.32 If Organ’s silence implicitly represented no news, it was because the question was so salient, the news so important, that if there had been news, his silence would have violated at least the maxim of quantity. Because the benefits of such news were so clearly worth the costs of an answer, no answer implicitly communicated no news. This is not to say that silence was the most efficient means of sharing – or purporting to share – that information. In the context, a short, express statement would have been less ambiguous. But, if the seller’s interpretation of the silence was correct, it was the method the parties apparently chose, and was within the range permitted by the maxims of quantity and quality. And that is enough to create a presumption that the communication was relatively important and reasonably effective. The cost-benefit analysis built into the rules of conversational implicature provide separate grounds for a presumption both that the parties’ chosen form of communication was effective enough to get the point across and that it contained information important enough to warrant any interference it might be expected to cause.

Great paper!  Highly recommended.

Claeys on Coase & Jefferson

Eric Claeys (George Mason University School of Law) has posted Jefferson Meets Coase: Land-Use Torts, Law and Economics, and Natural Property Rights on SSRN. Here is the abstract:

In tort scholarship, conventional wisdom assumes that economic analysis explains doctrine more determinately than philosophical analysis. This Article challenges that assumption, using land-use torts as a point of contact.

The Article studies cattle trespasses, pollution nuisances, train-sparks cases, and other basic rules of tort liability Ronald Coase popularized in The Problem of Social Cost. The Article compares standard economic analyses of these torts against an interpretation that follows from the natural-rights theory that informed the content of these torts when "tort" was forming into a single field of legal study. The "Jeffersonian" natural-rights theory predicts the contours of doctrine more determinately and accurately than "Coasian" economic analysis. It also anticipates and finesses a significant normative challenge to Coasian economic tort analysis - its tendency to demand that triers of fact process unrealistically volatile and fact-specific information to prescribe legal results.

The comparison teaches that conventional impressions about tort philosophy and economics have been misguided in at least three important respects. First, in a significant swath of doctrine, Jeffersonian natural-rights moral theory shapes the contours of tort quite determinately. Second, if philosophical tort scholarship has a bad reputation for being indeterminate, it does so at least in part because it has chosen to focus on the general corrective-justice architecture of tort - to the exclusion of specific theories of political morality informing particular doctrines. Finally, standard economic tort analysis cannot prescribe determinate results without making simplifying assumptions more characteristic of moral philosophy than of social science.

And from the text:

A theory is not necessarily deontological because it is moral; a theory of morality can be consequentialist and remain moral. A theory is “moral” if it obligates a subject to promote the good of the community in situations in which his individual good, conceived narrowly, points toward a different course of conduct. Some theories of morality define the “good” of the individual and the community not in deontological terms but in terms of individual and civic happiness. Consider the criticisms that deontological moral philosophy sometimes takes from virtue209 or natural-law ethicists.210 When such ethicists criticize deontological theory, they assume: Political and ethical rules can be justified only by their tendency to increase human happiness; that such happiness cannot be understood without a well-developed account of human psychology that is both explanatory and normative; and that universal deontological claims are not satisfying because they abstract from such psychology. In other words, ethical rules are judged by their tendency to enlarge the happiness of the individual and the community, where “happiness” is understood as a complete, mature, and excellent state of human satisfaction.

Claeys is surely right about the point in this paragraph.  Much of the criticism of philosophy in both public and private law is actually aimed at a narrow range of normative theories in the deontological tradition.

Highly recommended.

Goldberg on Torts

John C.P. Goldberg (Vanderbilt University - School of Law) has posted Ten Half-Truths About Tort Law (Valparaiso University Law Review, Vol. 42, p. 1221, 2008) on SSRN.  Here i s the abstract:

John Kenneth Galbraith coined the phrase "the conventional wisdom" to refer to a collection of ideas that members of a group find acceptable. Acceptability, he observed, rests on a variety of considerations other than veracity, which means conventional wisdom can be wrong. Sometimes it is dead wrong. Other times it blurs truth and falsity. In the latter case, it might be said to contain half-truths.

Because professors are in the business of critical inquiry, one might think that they are less reliant on "mere" conventional wisdom, but this supposition is false. Conventional wisdom plays as much of a role in academia as in other walks of life. The concern of this Article, based on the 2007 Valparaiso University Monsanto Lecture, is to explore conventional wisdom among torts professors, and perhaps law professors more generally. Specifically, it identifies ten half-truths embedded in standard academic depictions of tort. Because each distorts as much as or more than it enlightens, each must be discarded. The point of this exercise is conceptual and pragmatic. The immediate goal is to clarify; the further hope is that clarification might lead to better judgments about how to adjudicate tort cases, how to undertake legislative reform of tort law, and how to teach torts.

Simons on Tort & Cost-Benefit Analysis

Kenneth W. Simons (Boston University - School of Law) has posted Tort Negligence, Cost-Benefit Analysis and Tradeoffs: A Closer Look at the Controversy (Forthcoming in Loyola of Los Angeles Law Review) on SSRN.  Here is the abstract:

What is the proper role of cost-benefit analysis in understanding the tort concept of negligence or reasonable care? A straightforward question, you might think. But it is a question that manages to elicit groans of exasperation from those on both sides of the controversy.

For most utilitarians and adherents to law and economics, the answer is obvious: to say that people should not be negligent is to say that they should minimize the sum of the costs of accidents and the costs of preventing accidents. Under the economic formulation of the famous Learned Hand test, they should take a precaution if but only if the marginal costs (or burden, B) of that precaution are less than its marginal benefits (in the form of reduced risks of injury, measured by multiplying the probability (P) of the injury times the magnitude (L) of the injury if it occurs). If B>PxL, it would be absurd to require the greater expenditure, B.

For many advocates of a fairness, corrective justice, rights-based, or contractualist perspective, the opposite answer is equally obvious. Permitting a person to impose risks of harm on others merely because he would thereby obtain a benefit (or would otherwise incur a burden) greater than the discounted value of the harm he might inflict, amounts to authorizing him to dump the costs of his risky activities on innocent victims. To permit this type of sacrifice of individuals on the altar of aggregate social welfare is morally abhorrent.

Both sets of criticism have important elements of truth. Neither an unqualified cost-benefit analysis nor an unqualified rights-based rejection of tradeoffs is defensible - either as a description of tort doctrine and practice or as a normative prescription. However, a qualified (sensitive) consequentialist approach can accommodate legitimate criticisms of cost-benefit analysis: the consequentialist can launder preferences, and can consider the distribution of risk both in the social welfare calculus and in determining whether to compensate. At the same time, a qualified (tough-minded) deontological approach can accommodate the legitimate need to recognize tradeoffs: the deontologist can permit intrapersonal but not interpersonal aggregation of risks and benefits, can apply the concept of threshold deontology to risky activity, and can consider individual rather than population risk. I conclude that the formulation of the Learned Hand test found in the Restatement Third of Torts is broad enough to encompass each of these qualified approaches.

Highly recommended!