Reilly on Recent Scholarship

From the forthcoming issue of the AALS Contracts Newsletter, Marie Reilly (South Carolina) reviews a plethora (or is it a myriad?) of new contract law scholarship.

Click the link below for the article.

Of Merchant Usages, Unmade Laws,
International Sales, and Dead Offerors

by Marie T. Reilly
University of South Carolina School of Law

The University of Pennsylvania Law Review has dedicated an issue to the role of consent in contract liability. Omri Ben-Shahar provoked discussion with his essay, Contracts Without Consent: Exploring a New Basis for Contractual Liability, 152 Penn. L. Rev. 1829 (2004). He offers a more finely calibrated tool to recognize contractual liability than the traditional digital paradigm, where one moment a party is not bound at all, but in the next he is bound completely. Because obligation emerges gradually, the author suggests a conception of liability that limits a party’s freedom to retract a commitment to settled aspects of their relationship even before all aspects are settled. Omri characterized the three solicited responses to his idea as “razor-sharp” and on a “continuum between the curious and the angry.” Ronald Mann, Contracts–Only With ConsentDaniel Markowitz, The No-Retraction Principle and the Morality of NegotiationsJason Johnston, Investment, Information, and Promissory Liability.

The University of Wisconsin Law Review published papers presented on a host of contract formation issues by Ian Ayres & Greg Klass, Omri Ben-Shahar, Lisa Berstein, Melvin Eisenberg, Clayton Gillette, Juliet Kostritsky, Roy Kreitner, Stewart Macaulay, Todd Rakoff, Robert Scott & Paul Stephan and James J. White. 2004 Wis. L. Rev. 261 (2004). Although the topic of the symposium was Freedom from Contract, none of the participants espoused freedom from contracts scholarship.

The Chicago Journal of International Law published three related articles on the law merchant and international trade usage: Richard Epstein, Reflections on the Historical Origins and Economic Structure of the Law Merchant; Clayton Gillette, The Law Merchant in the Modern Age: Institutional Design and International Usages Under the CISG Avery Katz, The Relative Costs of Incorporating Trade Usage Into Domestic Versus International Sales Contracts [A Response to Gillette]. 5 Chi. J. Int’l L. 1 (2004).  In a journal across town, Larry DiMatteo, Lucien Dhooge, Stephanie Greene, Virginia Maurer and Marisa Pagnattaro examine the CISG after 15 years in The Interpretive Turn in International Sales Law: Analysis of Fifteen Years of CISG Jurisprudence, 24 Nw. J. Int’l L. & Bus. 299 (2004).

Two articles consider ambiguity in express contracts from different perspectives. Lawrence Solan, Pernicious Ambiguity in Contracts and Statutes, 79 Chi-Kent L. Rev. 859 (2004) examines the problem through the lens of judicial opinions. Alan Schwartz & Joel Watson, The Law and Economics of Costly Contracting, 20 J. L. Econ. & Org. 2 (2004) applies an economic filter. On the question of ambiguity in legislation, Scott Baker & Kimberly Krawiec, in The Penalty Default Canon, 72 Geo. Wash. L. Rev. 663 (2004) note that courts filling contractual gaps are sensitive to the reason for the incompleteness, e.g., transaction costs, bounded rationality, or strategic objectives. The authors suggest that courts take the same cause- sensitive approach to interpreting legislation.

Can you find four differences between current and revised Article 1? Keith Rowley can. He shares his insight on the loneliest Article in One for All, But None for (All of) One: Revised Article 1 of the Uniform Commercial Code, Nevada Lawyer July 2004 (Part 1) and August 2004 (Part 2).

Jay Feinman takes a look at the politics of contract law in Un-Making Law: The Conservative Campaign to Roll Back the Common Law (Beacon Press 2004). The author shares his perspective on how the common law is experiencing a radical and regressive change at the hands of right wing forces. See also Un-Making Law: The Classical Revival in the Common Law, 28 Seattle U. L.Rev. 1 (2004), and a web site about the common law which Jay edits, www.thecommonlaw.net.

You and your students will appreciate Robert A. Hillman’s book, Principles of Contract Law published as part of West’s hornbook series. It offers concise and confidence inspiring coverage of the basic principles of contract law. The classic Capability Problem in Contract Law by Richard Danzig is out in a second edition (in paperback) (Foundation Press 2004), co-authored this time with Geoffrey Watson. For the graphically inclined, Frank Doti has published Contract Law Outlines & Flowcharts to show analytically complex contract topics through diagrams. Contracts professors may obtain a complimentary copy from Frank at fdoti@chapman.edu. And, Robert Lloyd’s article Making Contracts Relevant: Thirteen Lessons for the First Year Contracts Course, 36 Ariz. State L. J. 257 (2004) offers a concise list of lessons on the practice of law every contracts professor should deliver in the first year contracts course.

And finally, in an article fitting for Halloween, Val Ricks pronounces The Death of Offers, 79 Ind. L. J. 667 (2004). The author does not nail the coffin shut on offers as the title suggests, but rather examines the rules relating to the effect of the offeror’s death on the offeree’s power to accept.