Abstract
This chapter begins the discussion of the role of judicial discretion in applying contract law. I focus here on the normative debate over the relative merits of standards and rules in contract law.1 I leave for the next chapter the claim that contract law as a whole contains a “fundamental contradiction”2 that enables judges to decide cases-at their discretion.
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References
See generally Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 Harv. L. Rev. 1685 (1976).
See Chapter 5.
See generally P.S. Atiyah & Robert S. Summers, Form and Substance in Anglo-American Law: A Comparative Study in Legal Reasoning, Legal Theory and Legal Institutions (1987)
Frederick Schauer, Playing By the Rules: A Philosophical Examination of Rule-Based Decisionmaking in Law and in Life (1991)
Louis Kaplow, Rules Versus Standards: An Economic Analysis, 42 Duke LJ. 557 (1992)
Kennedy, supra note 1; Kathleen M. Sullivan, Foreword: The Justices of Rules and Standards, 106 Harv. L. Rev. 22 (1992).
Kaplow, supra note 3, at 560.
Kaplow, supra note 3, Id. at 589. See also Duncan Kennedy, Legal Formality, 2 J. Legal Stud. 351,355 (1973).
See infra notes 224–35, and accompanying text. See also Kaplow, supra note 3, at 560–61.
Sullivan, supra note 3, at 66.
M. P. Ellinghaus, In Defense ofUnconscionability, 78 Yale L.J. 757, 760 (1969) (quoting Julius Stone, Legal System and Lawyers’ Reasonings 25 (1964)).
Sullivan, supra note 3, at 58. Standards tend “to collapse decisionmaking back into the direct application of the background principle or policy to a fact situation.” Id.
See infra notes 53-61, and accompanying text.
See Chapter 5.
Sullivan, supra note 3, at 62.
Sullivan, supra note 3, at 64–65.
See Robert L. Hale, Bargaining, Duress and Economic Liberty, 43 Colum. L. Rev. 603,625 (1943); Kennedy, supra note 1, at 1752; Arthur A. Leff, Unconscionability and the Crowd—Consumers and the Common Law Tradition, 31 U. Pitt. L. Rev. 349, 356–57 (1970).
Sullivan, supra note 3, at 63. See also Kaplow, supra note 3, at 563.
Sullivan, supra note 3, at 62.
Kennedy, supra note 1, at 1688–89,1698. See also Schauer, supra note 3, at 139.
Steven D. Smith, The Pursuit of Pragmatism, 100 Yale L.J. 409, 428 (1990) (discussing Frederick Schauer, Formalism, 97 Yale L.J. 509 (1988)).
On unconscionability, see generally, Arthur A. Leff, Unconscionability and the Code--The Emperor’s New Clause, 115 U. Pa. L. Rev. 485 (1967).
See Ralph A. Newman, The Hidden Equity: An Analysis of the Moral Content of the Principles of Equity, 19 Hastings L.J. 147 (1967).
Rudolph B. Schlesinger, Comparative Law 282 (4th ed. 1980).
Leff, supra note 25, at 539.
See the discussion in Ryan v. Weiner, 610 A.2d 1377 (Del. Ch. 1992).
John H. Baker, An Introduction to English Legal History 118 (3d ed. 1990); John L. Garvey, Some Aspects of the Merger of Law and Equity, 10 Cath. U. L. Rev. 59 (1961)
Ralph A. Newman, Equity AND Law: A Comparative Study 30 (1961). By barring new writs, the Provisions of Oxford in 1258 ended the flexibility of the common law.
William F. Walsh, Equity Prior to the Chancellor’s Court, 17 Geo. L.J. 97, 104–05 (1928). The early Chancellors were mostly members of the Church who believed they were not bound by precedent. See Newman, supra, at 26–28.
See, e.g., O. Metcalfe, General Principles of English Law 29 (8th ed. 1967); Newman, supra note 30, at 255.
Roger L. Severns, Nineteenth Century Equity: A Study in Law Reform, Part II -- Maturity and Reform, 13 Chi-Kent L. Rev. 305, 309 (1935).
See Charles A. Keigwin, The Origin of Equity, 18 Geo. L.J. 215, 233–34 (1930).
See Charles A. Keigwin, The Origin of Equity, 18 Geo. L.J. 215, 233–34 (1930).; Baker, supra note 30, at 121, 126–27.
Newman, supra note 30, at 261–63; Baker, supra note 30, at 127–128 (“equity has remained more flexible than the common law”). Professor Newman isolated certain principles that developed in equity courts: [R]ights should be based on substantial factors rather than on form[,]…the law should not aid the unscrupulous[,]…fully intended agreements should be carried out[,]…advantages gained through accident or mistake should be relinquished, and…hardship arising from accident or mistake should be fairly distributed….
Newman, supra note 30, at 261–63; Baker, supra note 30, at 127–128 (“equity has remained more flexible than the common law”). Professor Newman isolated certain principles that developed in equity courts: at 19.
Newman, supra note 30, at 33–34.
See, e.g., Campbell Soup Co. v. Wentz, 172 F.2d 80 (3d Cir. 1948); Texas Co. v. Central Fuel Oil Co., 194 F. 1 (8th Cir. 1912); Eastern Rolling Mill Co. v. Michlovitz, 157 Md. 51, 145 A. 378 (Md. 1929). See also Leff, supra note 25, at 534 & n.209.
See U.C.C. § 2–302 cmt. 1 (1962); Waters v. Min Ltd., 587 N.E.2d 231 (Mass. 1992).
See, e.g., Ryan v. Weiner, 610 A.2d 1377 (Del. Ch. 1992); Waters v. Min Ltd., 587 N.E.2d 231, 233 (Mass. 1992).
See Chapters 1,3, and 5.
See, e.g., Robert A. Hillman, Debunking Some Myths About Unconscionability: A New Framework for U.C.C. Section 2–302, 67 CORNELL L. REV. 1 (1982).
See Friedrich Kessler, Contracts of Adhesion—Some Thoughts About Freedom of Contract, 43 Colum. L. Rev. 629, 640–41 (1943). See also Jean Braucher, Contract Versus Contractariarism: The Regulatory Role of Contract Law, 47 Wash. & Lee L. Rev. 697, 712 (1990) (“‘Consent1 occurs in the context of a prior distribution of entitlements and abilities.”)
Robert L. Hale, Coercion and Distribution In a Supposedly Non-Coercive State, 38 Pol. Sci. Q. 470, 471–73 (1923).
Professor Kennedy saw connections between individualistic law and rules and altruistic law and standards. Kennedy, supra note 1, at 1685-87; 1737-1751. Professor Kelman evaluates the argument with some skepticism in Mark Kelman, A Guide to Critical Legal Studies 56–59 (1987).
See W. David Slawson, Standard Form Contracts and Democratic Control of Lawmaking Power, 84 Harv. L. Rev. 529 (1971).
Hillman, supra note 44, at 25–26.
Williams v. Walker-Thomas Furniture Co., 350 F.2d 445, 449-50 (D.C. Cir. 1965); Gladden v. Cadillac Motor Car Div., 416 A.2d 394,402 (N.J. 1980).
Richard E. Speidel, Unconscionability, Assent and Consumer Protection, 31 U. Pitt. L. REV. 359, 363–64 (1970).
Kessler, supra note 45, at 631–32.
See, e.g., Waters v. Min Ltd., 587 N.E.2d 231 (Mass. 1992); Hillman, supra note 44, at 25–26.
See, e.g., Ellinghaus, supra note 10; John E. Murray, Jr., Unconscionability: Unconscionability, 31 U. Pitt. L. Rev. 1, 4–5 (1969); Slawson, supra note 47, at 563.
See infra note 61, and accompanying text for some examples.
The availability of alternative rules is one of the principal claims of theorists associated with Critical Legal Studies. For a discussion, see Chapter 5.
Kessler, supra note 45, at 637-39; Kennedy, supra note 1, at 1689.
See Slawson, supra note 47, at 561–63. See also Chapter 5.
Kennedy, supra note 1, at 1701.
Kennedy, supra note 1, at 1697 (citing the parol evidence rule as an example).
See Spanogle, supra note 38, at 934. See also Lon L. Fuller, American Legal Realism, 82 U. Penn. L. Rev. 429, 437 (1934).
See, e.g., Standard Ins. Co. of N.Y. v. Ashland Oil & Refining Co., 186 F.2d 44, 47 (10th Cir. 1950); McPeak v. Boker, 53 N.W.2d 130 (Minn. 1952).
See, e.g., Murphy v. McNamara, 416 A.2d 170, 177 (Conn. Super. Ct. 1979). See also Ellen A. Peters, Remedies for Breach of Contracts Relating to the Sale of Goods Under the Uniform Commercial Code: A Roadmap for Article Two, 13 Yale L.J. 199, 202 n.10 (1963).
William D. Hawkland, A Transactional Guide TO THE U.C.C. § 1.1603, at 46-47 (1964); Spanogle, supra note 38, at 934–36.
Nathan Isaacs, The Standardizing of Contracts, 27 Yale L.J. 34, 47 (1917). See also Harry W. Jones, The Jurisprudence of Contracts, 44 U. Cin. L. Rev. 43, 50 (1975) (“The incidence of genuine contractual bargaining has not been reduced necessarily; indeed, government interventions designed to establish equality of bargaining power may conceivably make contract a more vigorous institution in our day than in Sir Henry Maine’s.”).
Regulation may also foster norms of appropriate behavior of the contracting participants. See Bernard S. Black, Is Corporate Law Trivial?: A Political and Economic Analysis, 84 Nw. U. L. Rev. 542, 573 (1990) (“Legal rules, such as the duty of loyalty owed by managers to shareholders, can affect corporate norms.”).
Kennedy, supra note 1, at 1699–1700.
See Atiyah, supra note 46, at 527.
Richard A. Posner, Economic Analysis of Law § 19.2, at 523–24 (4th ed. 1992).
Richard A. Posner, Economic Analysis of Law § 19.2, at 525.
For a critique of Posner’s position that common law adjudication is more efficient than legislative decisionmaking, see Arthur A. Leff, Economic Analysis of Law: Some Realism About Nominalism, 60 Va. L. Rev. 451, 470–73 (1974).
See Leff, supra note 25, at 488. See also Murray, supra note 53, at 12–13; Melvin A. Eisenberg, The Bargain Principle and Its Limits, 95 Harv. L. Rev. 741, 748–85 (1982); Hillman, supra note 44.
Leff, supra note 25, at 488, 539–40.
See also Ryan v. Weiner, 610 A.2d 1377 (Del. Ch. 1992).
See, e.g., Prostifresh Corp. v. Reynoso, 274 N.Y.S.2d 757, 758 (Dist. Ct. 1966), rev’d on other grounds, 281 N.Y.S.2d 964 (App. Term 1967) (contract unconscionable in part because of salesman’s awareness of buyer’s imminent termination of employment). See also Ellinghaus, supra note 10, at 771.
See, e.g., Davis v. Kolb, 563 S.W.2d 438 (Ark. 1978).
350F.2d445(D.C. Cir. 1965).
350 F.2d at 450.
See, e.g., Egan v. Kollsman Instrument Corp. 234 N.E.2d 199,202-03 (N.Y. 1967).
See, e.g., Kergald v. Armstrong Transfer Express Co., 113 N.E.2d 53, 54 (Mass. 1953); Willard Van Dyke Prods., Inc. v. Eastman Kodak Co., 189 N.E.2d 693 (N.Y. 1963); David v. Manufacturers Hanover Trust Co., 287 N.Y.S.2d 503 (Civ. Ct. 1968). An example of a hidden term is a liability disclaimer on the back of a claim check.
276N.E.2dl44(Ind. 1971).
276N.E.2dl44(Ind. 1971). at 147-48.
In addition, the clause was in fine print. Id. at 147.
Hillman supra note 44, at 32–33.
See, e.g., Murray, supra note 53, at 74–79.
See Leff, supra note 25, at 543.
See U.C.C. § 2–302(2); Ellinghaus, supra note 10, at 785.
See Leff, supra note 25, at 549–51.
See, e.g., Slawson, supra note 47.
See, e.g., Leff, supra note 18, at 351.
Id. at 772.
276 N.E.2d 144 (Ind. 1971); see supra notes 86–89, and accompanying text.
Braucher, supra note 45, at 701. See also Chapter 5.
See infra notes 182–223, and accompanying text. Even during the prominence of freedom of contract in eighteenth century England, courts barred agreements that were illegal or contrary to public policy. Samuel Williston, Freedom of Contract, 6 Cornell L. Q. 365, 373 (1921).
Robert S. Summers, The General Duty of Good Faith—Its Recognition and Conceptualization, 67 Cornell L. Rev. 810, 812 (1982) [hereinafter Summers, General Duty]).
Robert S. Summers, “Good Faith” in General Contract Law and the Sales Provisions of the Uniform Commercial Code, 54 Va. L. Rev. 195 (1968) [hereinafter Summers, Good Faith].
Summers, General Duty, supra note 103, at 813.
Summers, General Duty, supra note 103, at 813.
Summers, General Duty, supra note 103, at 813.
See Summers, Good Faith, supra note 104, at 199–207.
Summers, General Duty, supra note 103, at 811–812.
See generally id.
Mat 817–821.
Summers, General Duty, supra note 103, at 813. at 821.
Ellinghaus, supra note 10, at 795.
Summers, General Duty, supra note 103, at 822.
Restatement (Second) of Contracts § 205 (1979) provides: “Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.”
Summers, General Duty, supra note 103, at 810.
Restatement (Second) of Contracts § 205 cmt. a.
See cases cited supra note 118.
See Tymshare, Inc. v. Covell, 727 F.2d 1145, 1148 (D.C. Cir. 1984) (employer had unlimited discretion to modify or terminate employee’s compensation plan in its “sole discretion”); Nolan v. Control Data Corp., 579 A.2d 1252, 1254 (N.J. Super Ct. App. Div. 1990) (employer reserved the right to “make any retroactive, current and/or prospective adjustments or revisions to salaries, bonuses, [or] incentive compensation levels”).
Best v. U.S. Nat’l Bank of Or., 739 P.2d 554 (Or. 1987).
See, e.g., Edwin W. Patterson, The Interpretation and Construction of Contracts, 64 Colum. L. Rev., 833, 838–842 (1964); Restatement (Second) of Contracts § 212(1) and cmt.b (1979).
See Chapter 1; Hotchkiss v. Naf’l City Bank of N.Y., 200 F. 287, 293 (S.D.N. Y. 1911) (Learned Hand, J.). “We ask judges or juries to discover that ‘objective viewpoint’-through their own subjective processes.” Zell v. American Seating Co., 138 F. 2d 641, 647 (2d Cir. 1943) (Frank, J.), rev’d, 322 U. S. 709 (1944) (per curiam). See also Charles Fried, Contract As Promise: A Theory of Contractual Obligation 82 (1981).
Judge Scalia is now Justice Scalia of the United States Supreme Court.
727 F.2d 1145 (D.C. Cir. 1984).
727 F.2d 1145 (D.C. Cir. 1984). at 1154. The reasoning is similar when the issue is a bank’s right to set NSF fees: “[Discretion had to be exercised within the confines of the reasonable expectations of the depositors.” Best v. U.S. Nat’l Bank of Or., 739 P.2d 554, 558 (Or. 1987).
See, e.g., Best, 739 P.2d 554 (Or. 1987). But see Corenswet, Inc. v. Amana Refrigeration, Inc., 594 F.2d 129 (5th Cir. 1979), cert, denied, 444 U.S. 938 (1979) (“for any reason” termination clause means any reason a franchisor deemed sufficient). See also Wieder v. Skala, 609 N.E.2d 105,109 (N.Y. 1992) (courts can enforce implied terms that seem to contradict express ones).
Ian R. Macneil, Contracts: Adjustment of Long-Term Economic Relations Under Classical, Neoclassical, and Relational Contract Law, 72 Nw. U. L. Rev. 854, 883 (1978).
See, e.g., Market St. Assocs. Ltd. Partnership v. Frey, 941 F.2d 588, 596 (7th. Cir. 1991) (“[W]hether we say that a contract shall be deemed to contain such implied conditions as are necessary to make sense of the contract, or that a contract obligates the parties to cooperate in its performance in ‘good faith’ to the extent necessary to carry out the purposes of the contract, comes to much the same thing.”).
Tymshare, Inc. v. Covell, 727 F.2d 1145, 1154 (D.C. Cir. 1984).
Id. at 1152 n.5. See supra notes 43–102, and accompanying text. See generally Robert A. Hillman, An Analysis of the Cessation of Contractual Relations, 68 Cornell L. Rev. 617, 648–650 (1983).
See supra notes 72–73, and accompanying text.
See, e.g., Best v. U.S. Nat’l Bank of Or., 739 P.2d 554, 559 (Or. 1987). (“When a party has the contractual right to specify a price term, the term specified may be so high or low that the party will be deemed to have acted in bad faith regardless of the reasonable expectations of the other party.”).
Market St. Assocs. Ltd. Partnership v. Frey, 941 F.2d 588 (7th. Cir. 1991).
Compare the court’s reasoning in Corenswet, Inc. v. Amana Refrigeration, Inc., 594 F.2d 129 (5th Cir. 1979), cert, denied, 444 U.S. 938 (1979) (“for any reason” termination clause means any reason a franchisor deemed sufficient).
See Summers, Good Faith, supra note 104, at 226 n.288.
See Chapter 7. See also Robert A. Hillman, Court Adjustment of Long-Term Contracts: An Analysis Under Modern Contract Law, 1987 Duke LJ. 1, 4–6.
See generally Ian R. Macneil, Values in Contract: Internal and External, 78 Nw. U. L. Rev. 340 (1983).
Market St. Assocs. Ltd. Partnership v. Frey, 941 F.2d 588 (7th. Cir. 1991).
Market St. Assocs. Ltd. Partnership v. Frey, 941 F.2d, at 593.
Market St. Assocs. Ltd. Partnership v. Frey, 941 F.2d (7th. Cir. 1991).
Market St. Assocs. Ltd. Partnership v. Frey, 941 F.2d at 591. The lessee wrote to the lessor-finance company “to ask again that you advise us immediately if you are willing to provide the financing pursuant to the lease.” Id.
Market St. Assocs. Ltd. Partnership v. Frey, 941 F.2d at 591. The lessee wrote to the lessor-finance company “to ask again that you advise us immediately if you are willing to provide the financing pursuant to the lease.”
941 F.2d 588 (7th. Cir. 1991). In the actual case, the court reversed a summary judgment in favor of the lessor. Judge Posner, for the court, remanded for a determination of the facts. In dicta, he suggested that, if the facts were as set forth here, he would fmd bad faith.
In the actual case, the court reversed a summary judgment in favor of the lessor. Judge Posner, for the court, remanded for a determination of the facts. In dicta, he suggested that, if the facts were as set forth here, he would fmd bad faith. at 595-596.
In the actual case, the court reversed a summary judgment in favor of the lessor. Judge Posner, for the court, remanded for a determination of the facts. In dicta, he suggested that, if the facts were as set forth here, he would fmd bad faith. at 596.
In the actual case, the court reversed a summary judgment in favor of the lessor. Judge Posner, for the court, remanded for a determination of the facts. In dicta, he suggested that, if the facts were as set forth here, he would fmd bad faith.
In the actual case, the court reversed a summary judgment in favor of the lessor. Judge Posner, for the court, remanded for a determination of the facts. In dicta, he suggested that, if the facts were as set forth here, he would fmd bad faith. at 595.
In the actual case, the court reversed a summary judgment in favor of the lessor. Judge Posner, for the court, remanded for a determination of the facts. In dicta, he suggested that, if the facts were as set forth here, he would fmd bad faith.
In the actual case, the court reversed a summary judgment in favor of the lessor. Judge Posner, for the court, remanded for a determination of the facts. In dicta, he suggested that, if the facts were as set forth here, he would fmd bad faith. at 597.
See Richard A. Posner, Economic Analysis of Law (4th ed. 1992).
Market St. Assocs. v. Frey, 941 F.2d at 594.
Market St. Assocs. v. Frey, 941 F.2d at 594.
Market St. Assocs. v. Frey, 941 F.2d at 594.
Market St. Assocs. v. Frey, 941 F.2d at 594.
See, e.g., Lucinda Finley, Breaking Women’s Silence in Law: The Dilemma of the Gendered Nature of Legal Reasoning, 64 Notre Dame L. Rev. 886, 898 (1989).
Id. See also Carrie Menkel-Meadow, Mainstreaming Feminist Legal Theory, 23 PAC. L. J. 1493 (1992).
Carol Gilligan, In a Different Voice: Psychological Theory and Women’s Development (1982).
“[T]he feminine perspective views individuals primarily as interconnected members of a community…. [It] is… more other-directed…. The essential difference between the male and female perspectives [is that]…” [t]he basic feminine sense of self is connected to the world, the basic masculine sense of self is separate.’”Suzanna Sherry, Civic Virtue and the Feminine Voice in Constitutional Adjudication, 72 Va. L. Rev. 543,584–85 (1986) (quoting Nancy Chodorow, The Reproduction of Mothering: Psychoanalysis and the Sociology ofv Gender 169 (1978).
Peter Linzer, Uncontracts: Context, Contorts and the Relational Approach, 1988 Ann. Surv. Am. L. 139, 162.
Peter Linzer & Patricia A. Tidwell, Reply: Letter to David Dow-Friendly Critic and Critical Friend, 28 Hous. L. Rev. 861, 862 (1991).
See Mary J. Frug, Rescuing Impossibility Doctrine: A Postmodern Feminist Analysis of Contract Law, 140 U. Penn. L. Rev. 1029 (1992) [hereinafter Rescuing Impossibility]
See also Mary J. Frug, Re-Reading Contracts: A Feminist Analysis of a Contracts Casebook, 34 Am. U. L. Rev. 1065 (1985). Professor Frug was tragically murdered on April 4,1991. Her Impossibility article was in draft form at that time.
Frug, supra note 167, Rescuing Impossibility, at 1034.
Id. at 1031. See Richard A. Posner & Andrew M. Rosenfield, Impossibility and Related Doctrines in Contract Law: An Economic Analysis, 6 J. Legalv Stud. 83 (1977); Hillman, supra note 134; Hillman, supra note 140.
Posner & Rosenfield, supra note 169, at 90.
See Chapter 6.
See, e.g., Posner, supra note 68, § 4.1, at 92-93. Transatlantic Fin. Corp. v. United States, 363 F.2d 312, 316–19 (D.C. Cir. 1966), is a representative case.
Rescuing Impossibility, supra note 167, at 1035.
Rescuing Impossibility, supra note 167, at 1035.
Rescuing Impossibility, supra note 167, at 1035.
Rescuing Impossibility, supra note 167, at 1036.
Hillman, supra note 134, at 629–640.
Rescuing Impossibility, supra note 167, at 1036.
Rescuing Impossibility, supra note 167, at 1036.
Rescuing Impossibility, supra note 167, at 1037.
Joan M. Shaughnessy, Gilligam’s Travels, 7 Law & Ineq. J. 1, 9 (1988).
As to the latter, see Kaplow, supra note 3.
Even Ellinghaus, a strong supporter of unconscionability, makes the point. Ellinghaus, supra note 10, at 761.
See Kennedy, supra note 1, at 1753 (describing the argument).
Hillman, supra note 44, at 19–23.
See Richard A. Ecpstein, Unconscionability: A critical Reappraisal, 18 J. L. & Econ. 293, 306 (1975): “It is difficult to know what principles indentify the ‘just term,’ and for the same reasons that make it so difficult to determine the ‘just price’”
Kennedy, supra note 1, at 1739 (describing the now-formalist response).
Kaplow, supra note 3, at 621.
See Hale, supra note 18, at 625; Leff, supra note 18, at 356–57; Alan Schwartz, Seller Unequal Bargaining Power and the Judicial Process, 49 Ind. L. J. 367, 368–70, 390–92 (1974).
Leff, supra note 18, at 356–57.
Richard Danzig, A Comment on the Jurisprudence of the Uniform Commercial Code, 27 Stan. L. Rev. 621,629 (1975).
Richard Danzig, A Comment on the Jurisprudence of the Uniform Commercial Code, 27 Stan. L. Rev. at 629–30.
Epstein, supra note 187, at 294.
Epstein, supra note 187, at 315.
Gillette, supra note 188, at 650–651.
Mary E. Becker, Comments at the Association of American Law Schools Annual Meeting, Section on Women in Legal Education, Panel on The Influence of Feminist Theory and Gender Bias in Contracts (Jan. 1989) [hereinafter “Comments”].
Mary E. Becker, Comments at the Association of American Law Schools Annual Meeting, Section on Women in Legal Education, Panel on The Influence of Feminist Theory and Gender Bias in Contracts (Jan. 1989) [hereinafter “Comments”].
Mary E. Becker, Comments at the Association of American Law Schools Annual Meeting, Section on Women in Legal Education, Panel on The Influence of Feminist Theory and Gender Bias in Contracts (Jan. 1989) [hereinafter “Comments”].
Marjorie Schultz, Comments, supra note 203.
Marjorie Schultz, Comments, supra note 203.
Epstein, supra note 187, at 304–05.
Gillette, supra note 188, at 645.
Gillette, supra note 188, at 645.
Gillette, supra note 188, at 645.
Kaplow, supra note 3, at 622–23.
350 F.2d 445 (D.C. Cir. 1965). See notes 78-80 and accompanying text supra.
Leff, supra note 18, at 354–56.
Karl N. Llewellyn, Book Review, 52 Harv. L. Rev. 700, 702–03 (1939).
See Kaplow, supra note 3, at 622: “[R]ules, announced in advance, are more likely to influence actual behavior….”
Leff, supra note 25, at 501. “[W]hat may permissibly make the judges1 pulses race or their cheeks redden, so as to justify the destruction of a particular provision, is, one would suppose, what the judge ought to have been told by the statute.” Id. at 516.
Leff, supra note 25, at 504. “[W]hat may permissibly make the judges1 pulses race or their cheeks redden, so as to justify the destruction of a particular provision, is, one would suppose, what the judge ought to have been told by the statute.”
Leff, supra note 25, at 515–516. “[W]hat may permissibly make the judges1 pulses race or their cheeks redden, so as to justify the destruction of a particular provision, is, one would suppose, what the judge ought to have been told by the statute.”
Leff, supra note 25, at 550–51. “[W]hat may permissibly make the judges1 pulses race or their cheeks redden, so as to justify the destruction of a particular provision, is, one would suppose, what the judge ought to have been told by the statute.”
Leff, supra note 25, at 516–28. “[W]hat may permissibly make the judges1 pulses race or their cheeks redden, so as to justify the destruction of a particular provision, is, one would suppose, what the judge ought to have been told by the statute.”
See Kennedy, supra note 1, at 1688.
Eisenberg, supra note 70, at 754.
For elaboration, see Schauer, supra note 3, at 135–166. For my taste, the current mix of contract law rules and standards, including relatively concise rules of formation, performance, and remedy and increasingly influential policing standards, probably represents the most sensible compromise. See also Ian Ayres, Preliminary Thoughts on Optimal Tailoring of Contractual Rules, 3 S. Cal. Inter. L. Rev. 1,18 (1993): “In areas of contract performance, contract law might specify per se rules of performance and non-performance, but specify a “reasonableness” standard to govern conduct falling outside the rule-governed conduct.”
See supra notes 74–159, and accompanying text.
See, e.g., Pacific Gas & Electric Co. v. G.W. Thomas Drayage & Rigging Co., 68 Cal.2d 33, 442 P.2d 641 (1968).
See, e.g., Stanley Fish, The Law Wishes to Have a Formal Existence, in The Fate of Law at 178. (Austin Sarat & Thomas R. Kearns eds. 1991).
See supra notes 74–159, and accompanying text. “[Unconscionability] must be articulated and extended through the develpment of more specific norms to guide the resolution of specific cases, provide affirmative relief to exploited parties, and channel the discretion of administrators and legislators.” Eisenberg, supra note 70, at 800.
See supra notes 209–18, and accompanying text.
See generally Gillian K. Hadfield, Judicial Competence and the Interpretation of Incomplete Contracts, 23 J. Legal Stud. 159 (1994).
Baker, supra note 30, at 128-30; William F. Walsh, Is Equity Decadent?, 22 Minn. L. Rev. 479, 482–83 (1938).
See also Benjamin N. Cardozo, The Nature of the Judicial Process 137 (1921). According to Cardozo, the Chancellors, “without sacrificing uniformity and certainty, built up the system of equity with constant appeal to the teachings of right reason and conscience.” Id.
See supra notes 34–36, and accompanying text. Professor Leff thought the equity cases failed to shed light on modern unconscionability because, unlike the equity cases, unconscionability focuses on standard-form contracts. Moreover, the equity cases involved “overall imbalance,” whereas most modern cases deal with the possible unconscionability of particular terms. Leff, supra note 25, at 533. For a partial rebuttal, see Hillman, supra note 44, at 35–41.
Theorists published much of their work on unconscionability and good faith in the 1960s and 1970s, about the time when states considered and adopted the Uniform Commeercial Code, which, we have seen, includes both standards.
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Hillman, R.A. (1997). Theories of Contextualists and Neo-Formalists. In: The Richness of Contract Law. Law and Philosophy Library, vol 28. Springer, Dordrecht. https://doi.org/10.1007/978-94-011-5680-6_5
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DOI: https://doi.org/10.1007/978-94-011-5680-6_5
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