The culture of risk: Deconstructing mutual mistake

American Business Law Journal

Volumn 34, Issue 3, 1997, Pages 427-451

  Schneyer, Kenneth L ^a  

^a NONE

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EID: 0041194766     PISSN: 00027766     EISSN: None     Source Type: Journal    
DOI: 10.1111/j.1744-1714.1997.tb00900.x     Document Type: Article

References (79)

1. See Lenawee County Bd. of Health v. Messerly, 331 N.W.2d 203, 209 (Mich. 1982) (calling the distinction "inexact and confusing"); RESTATEMENT (SECOND) OF CONTRACTS § 154 cmt. a (1979) (calling the distinction "artificial and specious"); 2 E. ALLEN FARNSWORTH, FARNSWORTH ON CONTRACTS § 9.3, at 516 (1990) (calling the reasoning behind the distinction "specious and artificial"); Andrew Kull, Mistake, Frustration, and the Windfall Principle of Contract Remedies, 43 HASTINGS L.J. 1, 12 (1991) (the cases "leave a pronounced impression that the courts are manipulating doctrine in adherence to an unacknowledged rule of decision"); Frona M. Powell, Mistake in the Sale of Real Property, 40 DRAKE L. REV. 91, 98-99 (1991) (calling the distinctions "arbitrary and illogical").
2. See Lenawee County Bd. of Health v. Messerly, 331 N.W.2d 203, 209 (Mich. 1982) (calling the distinction "inexact and confusing"); RESTATEMENT (SECOND) OF CONTRACTS § 154 cmt. a (1979) (calling the distinction "artificial and specious"); 2 E. ALLEN FARNSWORTH, FARNSWORTH ON CONTRACTS § 9.3, at 516 (1990) (calling the reasoning behind the distinction "specious and artificial"); Andrew Kull, Mistake, Frustration, and the Windfall Principle of Contract Remedies, 43 HASTINGS L.J. 1, 12 (1991) (the cases "leave a pronounced impression that the courts are manipulating doctrine in adherence to an unacknowledged rule of decision"); Frona M. Powell, Mistake in the Sale of Real Property, 40 DRAKE L. REV. 91, 98-99 (1991) (calling the distinctions "arbitrary and illogical").
3. See Clare Dalton, An Essay in the Deconstruction of Contract Doctrine, 94 YALE L.J. 997, 1063-1065 (1985); Kull, supra note 1, at 2; Powell, supra note 1, at 98.
4. Andrew Kull, for example, has suggested that a "windfall" principle, essentially leaving the parties where they were before filing suit, explains the results in cases of both mistake and frustration of purpose. Kull, supra note 1. Frona Powell recommends that principles of conscionability and contemporary ideas of fairness should be used, at least in real estate cases, to decide questions of mistake. Powell, supra note 1.
5. See, e.g., Homer v. Bourland, 724 F.2d 1142, 1145 (5th Cir. 1984) (mistake did not go "to the essence of the enforcement of legal obligations"); Renner v. Kehl, 722 P.2d 262, 265 n.2 (Ariz. 1986) (failure to investigate does not preclude rescission for mistake where risk of mistake was not allocated by the parties); Lenawee County Bd. of Health v. Messerly, 331 N.W.2d 203, 210 (Mich. 1982) (adopting Restatement (Second) standard, holding that risk was allocated to the purchaser); Garb-Ko v. Lansing-Lewis Services, 423 N.W.2d 355, 357-58 (Mich. App. 1988) (allocation of risk is irrelevant if party to whom risk is allocated "is not the adversely affected party"); Gartner v. Eikill, 319 N.W.2d 397, 399 (Minn. 1982) (mistake of mere monetary value of land as opposed to mistake that "went to the very nature of the property"); Beasley v. Medin, 479 N.W.2d 95, 98 (Minn. App. 1992) (relief denied because adversely affected party failed to make "reasonable inquiry"); Clayton X-Ray Co. v. Evenson, 826 S.W.2d 45, 47 (Mo. Ct. App. 1992) (distinguishing mistakes in "essential element[s]" from mistakes in "collateral matters"); Reilley v. Richards, 632 N.E.2d 507, 508 (Ohio 1994) (decision turned on whether complaining party was "negligent" in failing to discover the mistake).
6. See generally 2 RESTATEMENT (SECOND) OF CONTRACTS §§ 151-154 (1981). In this essay, I am limiting myself to a discussion of those mistakes where two parties are said to share a common, but incorrect, belief. I am not concerned, here, with the other types of mistake that might justify relief, interesting as they are. I will not, for example, discuss cases in which the parties are not thinking about the same subject matter, or in which there is a scrivener's error. These other types of mistakes are categorically different, because one involves a common belief, one involves a failure to share a common belief, and one has essentially nothing to do with the beliefs of the parties.
7. See, e.g., U.C.C. § 1-103 (1977); UNIF. COMMON INTEREST OWNERSHIP ACT § 1-108 (1982); UNIF. CONDOMINIUM ACT § 1-108 (1980); UNIF. CONSTR. LIEN ACT § 105 (1987); UNIF. CONSUMER CREDIT CODE § 1-103 (1974); UNIF. FOREIGN-MONEY CLAIMS ACT § 13 (1989); UNIF. FRANCHISE AND BUSINESS OPPORTUNITIES ACT § 105(a) (1987); UNIF. LAND SEC. INTEREST ACT §104 (1985); UNIF. LAND TRANSACTIONS ACT § 1-104 (1975); UNIF. MOTOR VEHICLE ACCIDENT REPARATIONS ACT § 36(g) (1972); UNIF. PLANNED COMMUNITY ACT § 1-108 (1980); UNIF RESIDENTIAL LANDLORD AND TENANT ACT § 1.103 (1972); UNIF. SIMPLIFICATION OF LAND TRANSFERS ACT § 1-103 (1976).
8. See, e.g., ALA. CODE §§ 8-1-2, 8-1-40 (1993); CAL. CIV. CODE §§1640, 1689, 1690, 3391, 3399 (West 1985); GA. CODE ANN. § 13-5-4 (1993); HAW. REV. STAT. § 501-212 (1993); MONT. CODE ANN. § 28-2-1611 (1993); N.D. CENT. CODE § 30-04-17 (1993); S.D. CODIFIED LAWS § 21-11-1 (1993).
9. P.S. ATIYAH, THE RISE AND FALL OF FREEDOM OF CONTRACT 436 (1979), citing Kennedy v. Panama Royal Mail Co., L.R. 2 Q.B. 580 (1867).
10. 33 N.W. 919 (Mich. 1887). Ninety-five years later, the Michigan Supreme Court abandoned the logic of Sherwood in favor of what it called a "case-by-case analysis" based on the rule found in RESTATEMENT (SECOND) OF CONTRACTS § 152, 154 (1981); the holding in Sherwood was limited to its facts. Lenawee County Bd. of Health v. Messerly, 331 N.W.2d 203 (Mich. 1982).
11. Sherwood, 33 N.W. at 919.
12. Even when Sherwood was decided, however, there was already an extant case, but two years old, that seemed to contradict it. The Supreme Court of Wisconsin had held, in 1885, that the mistaken belief that a gem stone was a topaz, when in fact it was a rough diamond, did not justify rescission of the contract for sale of that stone. Wood v. Boynton, 25 N.W. 42 (Wisc. 1885). One cannot imagine anything more crucial to the "nature" or "identity" of the subject matter than the molecules of which it is composed, yet the result contradicts that of the Michigan court. The fact-value distinction was weakened even before it was made. My first exposure to the contradiction between Sherwood and Wood was in Farnsworth's treatise. 2 E. ALLEN FARNSWORTH, FARNSWORTH ON CONTRACTS §9-3, at 513-16 (1990). Andrew Kull points out that it is a favorite of contracts professors. Kull, supra note 1, at 9.
13. 2 RESTATEMENT (SECOND) OF CONTRACTS § 151 (1981).
14. Id. § 152.
15. Id. § 154.
16. Id. § 151 cmt. a.
17. See, e.g., Renner v. Kehl, 722 P.2d 262 (Ariz. 1986); First Trust Co. of Hilo, Ltd. v. Reinhardt, 655 P.2d 891 (Haw. Ct. App. 1982); Thieme v. Worst, 745 P.2d 1076 (Idaho Ct. App. 1987); Lenawee County Bd. of Health v. Messerly, 331 N.W.2d 203 (Mich. 1982); Beachcomber Coins, Inc. v. Boskett, 400 A.2d 78 (N.J. Super. Ct. App. Div. 1979).
18. Gartner v. Eikill, 319 N.W.2d 397 (Minn. 1982); Beasley v. Medin, 479 N.W.2d 95 (Minn. Ct. App. 1992).
19. See, e.g., JACQUES DERRIDA, OF GRAMMATOLOGY (G. Spivak., trans. 1976);
20. See also MICHEL FOUCAULT, THE HISTORY OF SEXUALITY, VOLUME I: AN INTRODUCTION (Robert Hurley Trans., Vintage 1980) (1978).
21. Two interesting works of legal scholarship that discuss deconstructive methods are J.M. Balkin, Deconstructive Practice and Legal Theory, 96 YALE L.J. 743 (1987), and Dalton, supra note 2. Balkin has also identified deconstructive practice in the work of P.S. Atiyah, notably his book Promises, Morals, and Law. Balkin, supra at 767-72, citing P.S. ATIYAH, PROMISES, MORALS, AND LAW (1981).
22. Two interesting works of legal scholarship that discuss deconstructive methods are J.M. Balkin, Deconstructive Practice and Legal Theory, 96 YALE L.J. 743 (1987), and Dalton, supra note 2. Balkin has also identified deconstructive practice in the work of P.S. Atiyah, notably his book Promises, Morals, and Law. Balkin, supra at 767-72, citing P.S. ATIYAH, PROMISES, MORALS, AND LAW (1981).
23. Two interesting works of legal scholarship that discuss deconstructive methods are J.M. Balkin, Deconstructive Practice and Legal Theory, 96 YALE L.J. 743 (1987), and Dalton, supra note 2. Balkin has also identified deconstructive practice in the work of P.S. Atiyah, notably his book Promises, Morals, and Law. Balkin, supra at 767-72, citing P.S. ATIYAH, PROMISES, MORALS, AND LAW (1981).
24. Dalton, supra note 2, at 1007, citing DERBIDA, supra note 18, at 144.
25. Balkin, supra note 19, at 752.
26. Dalton, supra note 2, at 1008.
27. Dalton, supra note 2.
28. These ideas are most cogently expressed in the works of James Boyd White. See JAMES BOYD WHITE, ACTS OF HOPE: CREATING AUTHORITY IN LITERATURE, LAW, AND POLITICS (1994) (hereinafter WHITE, ACTS OF HOPE); JAMES BOYD WHITE, JUSTICE AS TRANSLATION: AN ESSAY IN CULTURAL AND LEGAL CRITICISM (1990); JAMES BOYD WHITE, HERACLES' BOW: ESSAYS ON THE RHETORIC AND POETICS OF THE LAW (1985); JAMES BOYD WHITE, WHEN WORDS LOSE THEIR MEANING: CONSTITUTIONS AND RECONSTITUTIONS OF LANGUAGE, CHARACTER AND COMMUNITY (1984); JAMES BOYD WHITE, THE LEGAL IMAGINATION (1973); James Boyd White, What Can a Lawyer Learn from Literature?, 102 HARV. L. REV. 2014 (1989) (reviewing RICHARD A. POSNER, LAW AND LITERATURE: A MISUNDERSTOOD RELATION (1988)). Numerous writers explicitly use White's methods. See, e.g., MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW 8-9, 140 (1987); Clark D. Cunningham, The Lawyer as Translator, Representation as Text: Towards an Ethnography of Legal Discourse, 77 CORNELL L. REV. 1298 (1992); Thomas D. Eisele, The Activity of Being a Lawyer: The Imaginative Pursuit of Implications and Possibilities, 54 TENN. L. REV. 345 (1987); Jody Freeman, Constitutive Rhetoric: Law as a Literary Activity, 14 HARV. WOMEN'S L.J. 305 (1991); Kenneth L. Schneyer, Avoiding the Personal Pronoun: The Rhetoric of Display and Camouflage in the Law of Sexual Orientation, 46 RUTGERS L. REV. 1313 (1994); Kenneth L. Schneyer, Talking About Judges, Talking About Women: Constitutive Rhetoric in the Johnson Controls Case, 31 AM. BUS. L.J. 117 (1993). Others, while not citing White directly, clearly use similar approaches. See, e.g., MILNER S. BALL, THE WORD AND THE LAW (1993); CLIFFORD GEERTZ, LOCAL KNOWLEDGE: FURTHER ESSAYS IN INTERPRETIVE ANTHROPOLOGY (1983); L.H. LARUE, POLITICAL DISCOURSE: A CASE HISTORY OF THE WATERGATE AFFAIR (1988); JOSEPH L. SAX, MOUNTAINS WITHOUT HANDRAILS: REFLECTIONS ON THE NATIONAL PARKS (1980); PHILIP SOPER, A THEORY OF LAW (1984); JOSEPH VINING, THE AUTHORITATIVE AND THE AUTHORITARIAN (1986); Milner S. Ball, Stories of Origin and Constitutional Possibilities, 87 MICH L. REV. 2280 (1989).
29. These ideas are most cogently expressed in the works of James Boyd White. See JAMES BOYD WHITE, ACTS OF HOPE: CREATING AUTHORITY IN LITERATURE, LAW, AND POLITICS (1994) (hereinafter WHITE, ACTS OF HOPE); JAMES BOYD WHITE, JUSTICE AS TRANSLATION: AN ESSAY IN CULTURAL AND LEGAL CRITICISM (1990); JAMES BOYD WHITE, HERACLES' BOW: ESSAYS ON THE RHETORIC AND POETICS OF THE LAW (1985); JAMES BOYD WHITE, WHEN WORDS LOSE THEIR MEANING: CONSTITUTIONS AND RECONSTITUTIONS OF LANGUAGE, CHARACTER AND COMMUNITY (1984); JAMES BOYD WHITE, THE LEGAL IMAGINATION (1973); James Boyd White, What Can a Lawyer Learn from Literature?, 102 HARV. L. REV. 2014 (1989) (reviewing RICHARD A. POSNER, LAW AND LITERATURE: A MISUNDERSTOOD RELATION (1988)). Numerous writers explicitly use White's methods. See, e.g., MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW 8-9, 140 (1987); Clark D. Cunningham, The Lawyer as Translator, Representation as Text: Towards an Ethnography of Legal Discourse, 77 CORNELL L. REV. 1298 (1992); Thomas D. Eisele, The Activity of Being a Lawyer: The Imaginative Pursuit of Implications and Possibilities, 54 TENN. L. REV. 345 (1987); Jody Freeman, Constitutive Rhetoric: Law as a Literary Activity, 14 HARV. WOMEN'S L.J. 305 (1991); Kenneth L. Schneyer, Avoiding the Personal Pronoun: The Rhetoric of Display and Camouflage in the Law of Sexual Orientation, 46 RUTGERS L. REV. 1313 (1994); Kenneth L. Schneyer, Talking About Judges, Talking About Women: Constitutive Rhetoric in the Johnson Controls Case, 31 AM. BUS. L.J. 117 (1993). Others, while not citing White directly, clearly use similar approaches. See, e.g., MILNER S. BALL, THE WORD AND THE LAW (1993); CLIFFORD GEERTZ, LOCAL KNOWLEDGE: FURTHER ESSAYS IN INTERPRETIVE ANTHROPOLOGY (1983); L.H. LARUE, POLITICAL DISCOURSE: A CASE HISTORY OF THE WATERGATE AFFAIR (1988); JOSEPH L. SAX, MOUNTAINS WITHOUT HANDRAILS: REFLECTIONS ON THE NATIONAL PARKS (1980); PHILIP SOPER, A THEORY OF LAW (1984); JOSEPH VINING, THE AUTHORITATIVE AND THE AUTHORITARIAN (1986); Milner S. Ball, Stories of Origin and Constitutional Possibilities, 87 MICH L. REV. 2280 (1989).
30. These ideas are most cogently expressed in the works of James Boyd White. See JAMES BOYD WHITE, ACTS OF HOPE: CREATING AUTHORITY IN LITERATURE, LAW, AND POLITICS (1994) (hereinafter WHITE, ACTS OF HOPE); JAMES BOYD WHITE, JUSTICE AS TRANSLATION: AN ESSAY IN CULTURAL AND LEGAL CRITICISM (1990); JAMES BOYD WHITE, HERACLES' BOW: ESSAYS ON THE RHETORIC AND POETICS OF THE LAW (1985); JAMES BOYD WHITE, WHEN WORDS LOSE THEIR MEANING: CONSTITUTIONS AND RECONSTITUTIONS OF LANGUAGE, CHARACTER AND COMMUNITY (1984); JAMES BOYD WHITE, THE LEGAL IMAGINATION (1973); James Boyd White, What Can a Lawyer Learn from Literature?, 102 HARV. L. REV. 2014 (1989) (reviewing RICHARD A. POSNER, LAW AND LITERATURE: A MISUNDERSTOOD RELATION (1988)). Numerous writers explicitly use White's methods. See, e.g., MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW 8-9, 140 (1987); Clark D. Cunningham, The Lawyer as Translator, Representation as Text: Towards an Ethnography of Legal Discourse, 77 CORNELL L. REV. 1298 (1992); Thomas D. Eisele, The Activity of Being a Lawyer: The Imaginative Pursuit of Implications and Possibilities, 54 TENN. L. REV. 345 (1987); Jody Freeman, Constitutive Rhetoric: Law as a Literary Activity, 14 HARV. WOMEN'S L.J. 305 (1991); Kenneth L. Schneyer, Avoiding the Personal Pronoun: The Rhetoric of Display and Camouflage in the Law of Sexual Orientation, 46 RUTGERS L. REV. 1313 (1994); Kenneth L. Schneyer, Talking About Judges, Talking About Women: Constitutive Rhetoric in the Johnson Controls Case, 31 AM. BUS. L.J. 117 (1993). Others, while not citing White directly, clearly use similar approaches. See, e.g., MILNER S. BALL, THE WORD AND THE LAW (1993); CLIFFORD GEERTZ, LOCAL KNOWLEDGE: FURTHER ESSAYS IN INTERPRETIVE ANTHROPOLOGY (1983); L.H. LARUE, POLITICAL DISCOURSE: A CASE HISTORY OF THE WATERGATE AFFAIR (1988); JOSEPH L. SAX, MOUNTAINS WITHOUT HANDRAILS: REFLECTIONS ON THE NATIONAL PARKS (1980); PHILIP SOPER, A THEORY OF LAW (1984); JOSEPH VINING, THE AUTHORITATIVE AND THE AUTHORITARIAN (1986); Milner S. Ball, Stories of Origin and Constitutional Possibilities, 87 MICH L. REV. 2280 (1989).
31. These ideas are most cogently expressed in the works of James Boyd White. See JAMES BOYD WHITE, ACTS OF HOPE: CREATING AUTHORITY IN LITERATURE, LAW, AND POLITICS (1994) (hereinafter WHITE, ACTS OF HOPE); JAMES BOYD WHITE, JUSTICE AS TRANSLATION: AN ESSAY IN CULTURAL AND LEGAL CRITICISM (1990); JAMES BOYD WHITE, HERACLES' BOW: ESSAYS ON THE RHETORIC AND POETICS OF THE LAW (1985); JAMES BOYD WHITE, WHEN WORDS LOSE THEIR MEANING: CONSTITUTIONS AND RECONSTITUTIONS OF LANGUAGE, CHARACTER AND COMMUNITY (1984); JAMES BOYD WHITE, THE LEGAL IMAGINATION (1973); James Boyd White, What Can a Lawyer Learn from Literature?, 102 HARV. L. REV. 2014 (1989) (reviewing RICHARD A. POSNER, LAW AND LITERATURE: A MISUNDERSTOOD RELATION (1988)). Numerous writers explicitly use White's methods. See, e.g., MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW 8-9, 140 (1987); Clark D. Cunningham, The Lawyer as Translator, Representation as Text: Towards an Ethnography of Legal Discourse, 77 CORNELL L. REV. 1298 (1992); Thomas D. Eisele, The Activity of Being a Lawyer: The Imaginative Pursuit of Implications and Possibilities, 54 TENN. L. REV. 345 (1987); Jody Freeman, Constitutive Rhetoric: Law as a Literary Activity, 14 HARV. WOMEN'S L.J. 305 (1991); Kenneth L. Schneyer, Avoiding the Personal Pronoun: The Rhetoric of Display and Camouflage in the Law of Sexual Orientation, 46 RUTGERS L. REV. 1313 (1994); Kenneth L. Schneyer, Talking About Judges, Talking About Women: Constitutive Rhetoric in the Johnson Controls Case, 31 AM. BUS. L.J. 117 (1993). Others, while not citing White directly, clearly use similar approaches. See, e.g., MILNER S. BALL, THE WORD AND THE LAW (1993); CLIFFORD GEERTZ, LOCAL KNOWLEDGE: FURTHER ESSAYS IN INTERPRETIVE ANTHROPOLOGY (1983); L.H. LARUE, POLITICAL DISCOURSE: A CASE HISTORY OF THE WATERGATE AFFAIR (1988); JOSEPH L. SAX, MOUNTAINS WITHOUT HANDRAILS: REFLECTIONS ON THE NATIONAL PARKS (1980); PHILIP SOPER, A THEORY OF LAW (1984); JOSEPH VINING, THE AUTHORITATIVE AND THE AUTHORITARIAN (1986); Milner S. Ball, Stories of Origin and Constitutional Possibilities, 87 MICH L. REV. 2280 (1989).
32. These ideas are most cogently expressed in the works of James Boyd White. See JAMES BOYD WHITE, ACTS OF HOPE: CREATING AUTHORITY IN LITERATURE, LAW, AND POLITICS (1994) (hereinafter WHITE, ACTS OF HOPE); JAMES BOYD WHITE, JUSTICE AS TRANSLATION: AN ESSAY IN CULTURAL AND LEGAL CRITICISM (1990); JAMES BOYD WHITE, HERACLES' BOW: ESSAYS ON THE RHETORIC AND POETICS OF THE LAW (1985); JAMES BOYD WHITE, WHEN WORDS LOSE THEIR MEANING: CONSTITUTIONS AND RECONSTITUTIONS OF LANGUAGE, CHARACTER AND COMMUNITY (1984); JAMES BOYD WHITE, THE LEGAL IMAGINATION (1973); James Boyd White, What Can a Lawyer Learn from Literature?, 102 HARV. L. REV. 2014 (1989) (reviewing RICHARD A. POSNER, LAW AND LITERATURE: A MISUNDERSTOOD RELATION (1988)). Numerous writers explicitly use White's methods. See, e.g., MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW 8-9, 140 (1987); Clark D. Cunningham, The Lawyer as Translator, Representation as Text: Towards an Ethnography of Legal Discourse, 77 CORNELL L. REV. 1298 (1992); Thomas D. Eisele, The Activity of Being a Lawyer: The Imaginative Pursuit of Implications and Possibilities, 54 TENN. L. REV. 345 (1987); Jody Freeman, Constitutive Rhetoric: Law as a Literary Activity, 14 HARV. WOMEN'S L.J. 305 (1991); Kenneth L. Schneyer, Avoiding the Personal Pronoun: The Rhetoric of Display and Camouflage in the Law of Sexual Orientation, 46 RUTGERS L. REV. 1313 (1994); Kenneth L. Schneyer, Talking About Judges, Talking About Women: Constitutive Rhetoric in the Johnson Controls Case, 31 AM. BUS. L.J. 117 (1993). Others, while not citing White directly, clearly use similar approaches. See, e.g., MILNER S. BALL, THE WORD AND THE LAW (1993); CLIFFORD GEERTZ, LOCAL KNOWLEDGE: FURTHER ESSAYS IN INTERPRETIVE ANTHROPOLOGY (1983); L.H. LARUE, POLITICAL DISCOURSE: A CASE HISTORY OF THE WATERGATE AFFAIR (1988); JOSEPH L. SAX, MOUNTAINS WITHOUT HANDRAILS: REFLECTIONS ON THE NATIONAL PARKS (1980); PHILIP SOPER, A THEORY OF LAW (1984); JOSEPH VINING, THE AUTHORITATIVE AND THE AUTHORITARIAN (1986); Milner S. Ball, Stories of Origin and Constitutional Possibilities, 87 MICH L. REV. 2280 (1989).
33. These ideas are most cogently expressed in the works of James Boyd White. See JAMES BOYD WHITE, ACTS OF HOPE: CREATING AUTHORITY IN LITERATURE, LAW, AND POLITICS (1994) (hereinafter WHITE, ACTS OF HOPE); JAMES BOYD WHITE, JUSTICE AS TRANSLATION: AN ESSAY IN CULTURAL AND LEGAL CRITICISM (1990); JAMES BOYD WHITE, HERACLES' BOW: ESSAYS ON THE RHETORIC AND POETICS OF THE LAW (1985); JAMES BOYD WHITE, WHEN WORDS LOSE THEIR MEANING: CONSTITUTIONS AND RECONSTITUTIONS OF LANGUAGE, CHARACTER AND COMMUNITY (1984); JAMES BOYD WHITE, THE LEGAL IMAGINATION (1973); James Boyd White, What Can a Lawyer Learn from Literature?, 102 HARV. L. REV. 2014 (1989) (reviewing RICHARD A. POSNER, LAW AND LITERATURE: A MISUNDERSTOOD RELATION (1988)). Numerous writers explicitly use White's methods. See, e.g., MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW 8-9, 140 (1987); Clark D. Cunningham, The Lawyer as Translator, Representation as Text: Towards an Ethnography of Legal Discourse, 77 CORNELL L. REV. 1298 (1992); Thomas D. Eisele, The Activity of Being a Lawyer: The Imaginative Pursuit of Implications and Possibilities, 54 TENN. L. REV. 345 (1987); Jody Freeman, Constitutive Rhetoric: Law as a Literary Activity, 14 HARV. WOMEN'S L.J. 305 (1991); Kenneth L. Schneyer, Avoiding the Personal Pronoun: The Rhetoric of Display and Camouflage in the Law of Sexual Orientation, 46 RUTGERS L. REV. 1313 (1994); Kenneth L. Schneyer, Talking About Judges, Talking About Women: Constitutive Rhetoric in the Johnson Controls Case, 31 AM. BUS. L.J. 117 (1993). Others, while not citing White directly, clearly use similar approaches. See, e.g., MILNER S. BALL, THE WORD AND THE LAW (1993); CLIFFORD GEERTZ, LOCAL KNOWLEDGE: FURTHER ESSAYS IN INTERPRETIVE ANTHROPOLOGY (1983); L.H. LARUE, POLITICAL DISCOURSE: A CASE HISTORY OF THE WATERGATE AFFAIR (1988); JOSEPH L. SAX, MOUNTAINS WITHOUT HANDRAILS: REFLECTIONS ON THE NATIONAL PARKS (1980); PHILIP SOPER, A THEORY OF LAW (1984); JOSEPH VINING, THE AUTHORITATIVE AND THE AUTHORITARIAN (1986); Milner S. Ball, Stories of Origin and Constitutional Possibilities, 87 MICH L. REV. 2280 (1989).
34. These ideas are most cogently expressed in the works of James Boyd White. See JAMES BOYD WHITE, ACTS OF HOPE: CREATING AUTHORITY IN LITERATURE, LAW, AND POLITICS (1994) (hereinafter WHITE, ACTS OF HOPE); JAMES BOYD WHITE, JUSTICE AS TRANSLATION: AN ESSAY IN CULTURAL AND LEGAL CRITICISM (1990); JAMES BOYD WHITE, HERACLES' BOW: ESSAYS ON THE RHETORIC AND POETICS OF THE LAW (1985); JAMES BOYD WHITE, WHEN WORDS LOSE THEIR MEANING: CONSTITUTIONS AND RECONSTITUTIONS OF LANGUAGE, CHARACTER AND COMMUNITY (1984); JAMES BOYD WHITE, THE LEGAL IMAGINATION (1973); James Boyd White, What Can a Lawyer Learn from Literature?, 102 HARV. L. REV. 2014 (1989) (reviewing RICHARD A. POSNER, LAW AND LITERATURE: A MISUNDERSTOOD RELATION (1988)). Numerous writers explicitly use White's methods. See, e.g., MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW 8-9, 140 (1987); Clark D. Cunningham, The Lawyer as Translator, Representation as Text: Towards an Ethnography of Legal Discourse, 77 CORNELL L. REV. 1298 (1992); Thomas D. Eisele, The Activity of Being a Lawyer: The Imaginative Pursuit of Implications and Possibilities, 54 TENN. L. REV. 345 (1987); Jody Freeman, Constitutive Rhetoric: Law as a Literary Activity, 14 HARV. WOMEN'S L.J. 305 (1991); Kenneth L. Schneyer, Avoiding the Personal Pronoun: The Rhetoric of Display and Camouflage in the Law of Sexual Orientation, 46 RUTGERS L. REV. 1313 (1994); Kenneth L. Schneyer, Talking About Judges, Talking About Women: Constitutive Rhetoric in the Johnson Controls Case, 31 AM. BUS. L.J. 117 (1993). Others, while not citing White directly, clearly use similar approaches. See, e.g., MILNER S. BALL, THE WORD AND THE LAW (1993); CLIFFORD GEERTZ, LOCAL KNOWLEDGE: FURTHER ESSAYS IN INTERPRETIVE ANTHROPOLOGY (1983); L.H. LARUE, POLITICAL DISCOURSE: A CASE HISTORY OF THE WATERGATE AFFAIR (1988); JOSEPH L. SAX, MOUNTAINS WITHOUT HANDRAILS: REFLECTIONS ON THE NATIONAL PARKS (1980); PHILIP SOPER, A THEORY OF LAW (1984); JOSEPH VINING, THE AUTHORITATIVE AND THE AUTHORITARIAN (1986); Milner S. Ball, Stories of Origin and Constitutional Possibilities, 87 MICH L. REV. 2280 (1989).
35. These ideas are most cogently expressed in the works of James Boyd White. See JAMES BOYD WHITE, ACTS OF HOPE: CREATING AUTHORITY IN LITERATURE, LAW, AND POLITICS (1994) (hereinafter WHITE, ACTS OF HOPE); JAMES BOYD WHITE, JUSTICE AS TRANSLATION: AN ESSAY IN CULTURAL AND LEGAL CRITICISM (1990); JAMES BOYD WHITE, HERACLES' BOW: ESSAYS ON THE RHETORIC AND POETICS OF THE LAW (1985); JAMES BOYD WHITE, WHEN WORDS LOSE THEIR MEANING: CONSTITUTIONS AND RECONSTITUTIONS OF LANGUAGE, CHARACTER AND COMMUNITY (1984); JAMES BOYD WHITE, THE LEGAL IMAGINATION (1973); James Boyd White, What Can a Lawyer Learn from Literature?, 102 HARV. L. REV. 2014 (1989) (reviewing RICHARD A. POSNER, LAW AND LITERATURE: A MISUNDERSTOOD RELATION (1988)). Numerous writers explicitly use White's methods. See, e.g., MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW 8-9, 140 (1987); Clark D. Cunningham, The Lawyer as Translator, Representation as Text: Towards an Ethnography of Legal Discourse, 77 CORNELL L. REV. 1298 (1992); Thomas D. Eisele, The Activity of Being a Lawyer: The Imaginative Pursuit of Implications and Possibilities, 54 TENN. L. REV. 345 (1987); Jody Freeman, Constitutive Rhetoric: Law as a Literary Activity, 14 HARV. WOMEN'S L.J. 305 (1991); Kenneth L. Schneyer, Avoiding the Personal Pronoun: The Rhetoric of Display and Camouflage in the Law of Sexual Orientation, 46 RUTGERS L. REV. 1313 (1994); Kenneth L. Schneyer, Talking About Judges, Talking About Women: Constitutive Rhetoric in the Johnson Controls Case, 31 AM. BUS. L.J. 117 (1993). Others, while not citing White directly, clearly use similar approaches. See, e.g., MILNER S. BALL, THE WORD AND THE LAW (1993); CLIFFORD GEERTZ, LOCAL KNOWLEDGE: FURTHER ESSAYS IN INTERPRETIVE ANTHROPOLOGY (1983); L.H. LARUE, POLITICAL DISCOURSE: A CASE HISTORY OF THE WATERGATE AFFAIR (1988); JOSEPH L. SAX, MOUNTAINS WITHOUT HANDRAILS: REFLECTIONS ON THE NATIONAL PARKS (1980); PHILIP SOPER, A THEORY OF LAW (1984); JOSEPH VINING, THE AUTHORITATIVE AND THE AUTHORITARIAN (1986); Milner S. Ball, Stories of Origin and Constitutional Possibilities, 87 MICH L. REV. 2280 (1989).
36. These ideas are most cogently expressed in the works of James Boyd White. See JAMES BOYD WHITE, ACTS OF HOPE: CREATING AUTHORITY IN LITERATURE, LAW, AND POLITICS (1994) (hereinafter WHITE, ACTS OF HOPE); JAMES BOYD WHITE, JUSTICE AS TRANSLATION: AN ESSAY IN CULTURAL AND LEGAL CRITICISM (1990); JAMES BOYD WHITE, HERACLES' BOW: ESSAYS ON THE RHETORIC AND POETICS OF THE LAW (1985); JAMES BOYD WHITE, WHEN WORDS LOSE THEIR MEANING: CONSTITUTIONS AND RECONSTITUTIONS OF LANGUAGE, CHARACTER AND COMMUNITY (1984); JAMES BOYD WHITE, THE LEGAL IMAGINATION (1973); James Boyd White, What Can a Lawyer Learn from Literature?, 102 HARV. L. REV. 2014 (1989) (reviewing RICHARD A. POSNER, LAW AND LITERATURE: A MISUNDERSTOOD RELATION (1988)). Numerous writers explicitly use White's methods. See, e.g., MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW 8-9, 140 (1987); Clark D. Cunningham, The Lawyer as Translator, Representation as Text: Towards an Ethnography of Legal Discourse, 77 CORNELL L. REV. 1298 (1992); Thomas D. Eisele, The Activity of Being a Lawyer: The Imaginative Pursuit of Implications and Possibilities, 54 TENN. L. REV. 345 (1987); Jody Freeman, Constitutive Rhetoric: Law as a Literary Activity, 14 HARV. WOMEN'S L.J. 305 (1991); Kenneth L. Schneyer, Avoiding the Personal Pronoun: The Rhetoric of Display and Camouflage in the Law of Sexual Orientation, 46 RUTGERS L. REV. 1313 (1994); Kenneth L. Schneyer, Talking About Judges, Talking About Women: Constitutive Rhetoric in the Johnson Controls Case, 31 AM. BUS. L.J. 117 (1993). Others, while not citing White directly, clearly use similar approaches. See, e.g., MILNER S. BALL, THE WORD AND THE LAW (1993); CLIFFORD GEERTZ, LOCAL KNOWLEDGE: FURTHER ESSAYS IN INTERPRETIVE ANTHROPOLOGY (1983); L.H. LARUE, POLITICAL DISCOURSE: A CASE HISTORY OF THE WATERGATE AFFAIR (1988); JOSEPH L. SAX, MOUNTAINS WITHOUT HANDRAILS: REFLECTIONS ON THE NATIONAL PARKS (1980); PHILIP SOPER, A THEORY OF LAW (1984); JOSEPH VINING, THE AUTHORITATIVE AND THE AUTHORITARIAN (1986); Milner S. Ball, Stories of Origin and Constitutional Possibilities, 87 MICH L. REV. 2280 (1989).
37. These ideas are most cogently expressed in the works of James Boyd White. See JAMES BOYD WHITE, ACTS OF HOPE: CREATING AUTHORITY IN LITERATURE, LAW, AND POLITICS (1994) (hereinafter WHITE, ACTS OF HOPE); JAMES BOYD WHITE, JUSTICE AS TRANSLATION: AN ESSAY IN CULTURAL AND LEGAL CRITICISM (1990); JAMES BOYD WHITE, HERACLES' BOW: ESSAYS ON THE RHETORIC AND POETICS OF THE LAW (1985); JAMES BOYD WHITE, WHEN WORDS LOSE THEIR MEANING: CONSTITUTIONS AND RECONSTITUTIONS OF LANGUAGE, CHARACTER AND COMMUNITY (1984); JAMES BOYD WHITE, THE LEGAL IMAGINATION (1973); James Boyd White, What Can a Lawyer Learn from Literature?, 102 HARV. L. REV. 2014 (1989) (reviewing RICHARD A. POSNER, LAW AND LITERATURE: A MISUNDERSTOOD RELATION (1988)). Numerous writers explicitly use White's methods. See, e.g., MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW 8-9, 140 (1987); Clark D. Cunningham, The Lawyer as Translator, Representation as Text: Towards an Ethnography of Legal Discourse, 77 CORNELL L. REV. 1298 (1992); Thomas D. Eisele, The Activity of Being a Lawyer: The Imaginative Pursuit of Implications and Possibilities, 54 TENN. L. REV. 345 (1987); Jody Freeman, Constitutive Rhetoric: Law as a Literary Activity, 14 HARV. WOMEN'S L.J. 305 (1991); Kenneth L. Schneyer, Avoiding the Personal Pronoun: The Rhetoric of Display and Camouflage in the Law of Sexual Orientation, 46 RUTGERS L. REV. 1313 (1994); Kenneth L. Schneyer, Talking About Judges, Talking About Women: Constitutive Rhetoric in the Johnson Controls Case, 31 AM. BUS. L.J. 117 (1993). Others, while not citing White directly, clearly use similar approaches. See, e.g., MILNER S. BALL, THE WORD AND THE LAW (1993); CLIFFORD GEERTZ, LOCAL KNOWLEDGE: FURTHER ESSAYS IN INTERPRETIVE ANTHROPOLOGY (1983); L.H. LARUE, POLITICAL DISCOURSE: A CASE HISTORY OF THE WATERGATE AFFAIR (1988); JOSEPH L. SAX, MOUNTAINS WITHOUT HANDRAILS: REFLECTIONS ON THE NATIONAL PARKS (1980); PHILIP SOPER, A THEORY OF LAW (1984); JOSEPH VINING, THE AUTHORITATIVE AND THE AUTHORITARIAN (1986); Milner S. Ball, Stories of Origin and Constitutional Possibilities, 87 MICH L. REV. 2280 (1989).
38. These ideas are most cogently expressed in the works of James Boyd White. See JAMES BOYD WHITE, ACTS OF HOPE: CREATING AUTHORITY IN LITERATURE, LAW, AND POLITICS (1994) (hereinafter WHITE, ACTS OF HOPE); JAMES BOYD WHITE, JUSTICE AS TRANSLATION: AN ESSAY IN CULTURAL AND LEGAL CRITICISM (1990); JAMES BOYD WHITE, HERACLES' BOW: ESSAYS ON THE RHETORIC AND POETICS OF THE LAW (1985); JAMES BOYD WHITE, WHEN WORDS LOSE THEIR MEANING: CONSTITUTIONS AND RECONSTITUTIONS OF LANGUAGE, CHARACTER AND COMMUNITY (1984); JAMES BOYD WHITE, THE LEGAL IMAGINATION (1973); James Boyd White, What Can a Lawyer Learn from Literature?, 102 HARV. L. REV. 2014 (1989) (reviewing RICHARD A. POSNER, LAW AND LITERATURE: A MISUNDERSTOOD RELATION (1988)). Numerous writers explicitly use White's methods. See, e.g., MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW 8-9, 140 (1987); Clark D. Cunningham, The Lawyer as Translator, Representation as Text: Towards an Ethnography of Legal Discourse, 77 CORNELL L. REV. 1298 (1992); Thomas D. Eisele, The Activity of Being a Lawyer: The Imaginative Pursuit of Implications and Possibilities, 54 TENN. L. REV. 345 (1987); Jody Freeman, Constitutive Rhetoric: Law as a Literary Activity, 14 HARV. WOMEN'S L.J. 305 (1991); Kenneth L. Schneyer, Avoiding the Personal Pronoun: The Rhetoric of Display and Camouflage in the Law of Sexual Orientation, 46 RUTGERS L. REV. 1313 (1994); Kenneth L. Schneyer, Talking About Judges, Talking About Women: Constitutive Rhetoric in the Johnson Controls Case, 31 AM. BUS. L.J. 117 (1993). Others, while not citing White directly, clearly use similar approaches. See, e.g., MILNER S. BALL, THE WORD AND THE LAW (1993); CLIFFORD GEERTZ, LOCAL KNOWLEDGE: FURTHER ESSAYS IN INTERPRETIVE ANTHROPOLOGY (1983); L.H. LARUE, POLITICAL DISCOURSE: A CASE HISTORY OF THE WATERGATE AFFAIR (1988); JOSEPH L. SAX, MOUNTAINS WITHOUT HANDRAILS: REFLECTIONS ON THE NATIONAL PARKS (1980); PHILIP SOPER, A THEORY OF LAW (1984); JOSEPH VINING, THE AUTHORITATIVE AND THE AUTHORITARIAN (1986); Milner S. Ball, Stories of Origin and Constitutional Possibilities, 87 MICH L. REV. 2280 (1989).
39. These ideas are most cogently expressed in the works of James Boyd White. See JAMES BOYD WHITE, ACTS OF HOPE: CREATING AUTHORITY IN LITERATURE, LAW, AND POLITICS (1994) (hereinafter WHITE, ACTS OF HOPE); JAMES BOYD WHITE, JUSTICE AS TRANSLATION: AN ESSAY IN CULTURAL AND LEGAL CRITICISM (1990); JAMES BOYD WHITE, HERACLES' BOW: ESSAYS ON THE RHETORIC AND POETICS OF THE LAW (1985); JAMES BOYD WHITE, WHEN WORDS LOSE THEIR MEANING: CONSTITUTIONS AND RECONSTITUTIONS OF LANGUAGE, CHARACTER AND COMMUNITY (1984); JAMES BOYD WHITE, THE LEGAL IMAGINATION (1973); James Boyd White, What Can a Lawyer Learn from Literature?, 102 HARV. L. REV. 2014 (1989) (reviewing RICHARD A. POSNER, LAW AND LITERATURE: A MISUNDERSTOOD RELATION (1988)). Numerous writers explicitly use White's methods. See, e.g., MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW 8-9, 140 (1987); Clark D. Cunningham, The Lawyer as Translator, Representation as Text: Towards an Ethnography of Legal Discourse, 77 CORNELL L. REV. 1298 (1992); Thomas D. Eisele, The Activity of Being a Lawyer: The Imaginative Pursuit of Implications and Possibilities, 54 TENN. L. REV. 345 (1987); Jody Freeman, Constitutive Rhetoric: Law as a Literary Activity, 14 HARV. WOMEN'S L.J. 305 (1991); Kenneth L. Schneyer, Avoiding the Personal Pronoun: The Rhetoric of Display and Camouflage in the Law of Sexual Orientation, 46 RUTGERS L. REV. 1313 (1994); Kenneth L. Schneyer, Talking About Judges, Talking About Women: Constitutive Rhetoric in the Johnson Controls Case, 31 AM. BUS. L.J. 117 (1993). Others, while not citing White directly, clearly use similar approaches. See, e.g., MILNER S. BALL, THE WORD AND THE LAW (1993); CLIFFORD GEERTZ, LOCAL KNOWLEDGE: FURTHER ESSAYS IN INTERPRETIVE ANTHROPOLOGY (1983); L.H. LARUE, POLITICAL DISCOURSE: A CASE HISTORY OF THE WATERGATE AFFAIR (1988); JOSEPH L. SAX, MOUNTAINS WITHOUT HANDRAILS: REFLECTIONS ON THE NATIONAL PARKS (1980); PHILIP SOPER, A THEORY OF LAW (1984); JOSEPH VINING, THE AUTHORITATIVE AND THE AUTHORITARIAN (1986); Milner S. Ball, Stories of Origin and Constitutional Possibilities, 87 MICH L. REV. 2280 (1989).
40. These ideas are most cogently expressed in the works of James Boyd White. See JAMES BOYD WHITE, ACTS OF HOPE: CREATING AUTHORITY IN LITERATURE, LAW, AND POLITICS (1994) (hereinafter WHITE, ACTS OF HOPE); JAMES BOYD WHITE, JUSTICE AS TRANSLATION: AN ESSAY IN CULTURAL AND LEGAL CRITICISM (1990); JAMES BOYD WHITE, HERACLES' BOW: ESSAYS ON THE RHETORIC AND POETICS OF THE LAW (1985); JAMES BOYD WHITE, WHEN WORDS LOSE THEIR MEANING: CONSTITUTIONS AND RECONSTITUTIONS OF LANGUAGE, CHARACTER AND COMMUNITY (1984); JAMES BOYD WHITE, THE LEGAL IMAGINATION (1973); James Boyd White, What Can a Lawyer Learn from Literature?, 102 HARV. L. REV. 2014 (1989) (reviewing RICHARD A. POSNER, LAW AND LITERATURE: A MISUNDERSTOOD RELATION (1988)). Numerous writers explicitly use White's methods. See, e.g., MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW 8-9, 140 (1987); Clark D. Cunningham, The Lawyer as Translator, Representation as Text: Towards an Ethnography of Legal Discourse, 77 CORNELL L. REV. 1298 (1992); Thomas D. Eisele, The Activity of Being a Lawyer: The Imaginative Pursuit of Implications and Possibilities, 54 TENN. L. REV. 345 (1987); Jody Freeman, Constitutive Rhetoric: Law as a Literary Activity, 14 HARV. WOMEN'S L.J. 305 (1991); Kenneth L. Schneyer, Avoiding the Personal Pronoun: The Rhetoric of Display and Camouflage in the Law of Sexual Orientation, 46 RUTGERS L. REV. 1313 (1994); Kenneth L. Schneyer, Talking About Judges, Talking About Women: Constitutive Rhetoric in the Johnson Controls Case, 31 AM. BUS. L.J. 117 (1993). Others, while not citing White directly, clearly use similar approaches. See, e.g., MILNER S. BALL, THE WORD AND THE LAW (1993); CLIFFORD GEERTZ, LOCAL KNOWLEDGE: FURTHER ESSAYS IN INTERPRETIVE ANTHROPOLOGY (1983); L.H. LARUE, POLITICAL DISCOURSE: A CASE HISTORY OF THE WATERGATE AFFAIR (1988); JOSEPH L. SAX, MOUNTAINS WITHOUT HANDRAILS: REFLECTIONS ON THE NATIONAL PARKS (1980); PHILIP SOPER, A THEORY OF LAW (1984); JOSEPH VINING, THE AUTHORITATIVE AND THE AUTHORITARIAN (1986); Milner S. Ball, Stories of Origin and Constitutional Possibilities, 87 MICH L. REV. 2280 (1989).
41. These ideas are most cogently expressed in the works of James Boyd White. See JAMES BOYD WHITE, ACTS OF HOPE: CREATING AUTHORITY IN LITERATURE, LAW, AND POLITICS (1994) (hereinafter WHITE, ACTS OF HOPE); JAMES BOYD WHITE, JUSTICE AS TRANSLATION: AN ESSAY IN CULTURAL AND LEGAL CRITICISM (1990); JAMES BOYD WHITE, HERACLES' BOW: ESSAYS ON THE RHETORIC AND POETICS OF THE LAW (1985); JAMES BOYD WHITE, WHEN WORDS LOSE THEIR MEANING: CONSTITUTIONS AND RECONSTITUTIONS OF LANGUAGE, CHARACTER AND COMMUNITY (1984); JAMES BOYD WHITE, THE LEGAL IMAGINATION (1973); James Boyd White, What Can a Lawyer Learn from Literature?, 102 HARV. L. REV. 2014 (1989) (reviewing RICHARD A. POSNER, LAW AND LITERATURE: A MISUNDERSTOOD RELATION (1988)). Numerous writers explicitly use White's methods. See, e.g., MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW 8-9, 140 (1987); Clark D. Cunningham, The Lawyer as Translator, Representation as Text: Towards an Ethnography of Legal Discourse, 77 CORNELL L. REV. 1298 (1992); Thomas D. Eisele, The Activity of Being a Lawyer: The Imaginative Pursuit of Implications and Possibilities, 54 TENN. L. REV. 345 (1987); Jody Freeman, Constitutive Rhetoric: Law as a Literary Activity, 14 HARV. WOMEN'S L.J. 305 (1991); Kenneth L. Schneyer, Avoiding the Personal Pronoun: The Rhetoric of Display and Camouflage in the Law of Sexual Orientation, 46 RUTGERS L. REV. 1313 (1994); Kenneth L. Schneyer, Talking About Judges, Talking About Women: Constitutive Rhetoric in the Johnson Controls Case, 31 AM. BUS. L.J. 117 (1993). Others, while not citing White directly, clearly use similar approaches. See, e.g., MILNER S. BALL, THE WORD AND THE LAW (1993); CLIFFORD GEERTZ, LOCAL KNOWLEDGE: FURTHER ESSAYS IN INTERPRETIVE ANTHROPOLOGY (1983); L.H. LARUE, POLITICAL DISCOURSE: A CASE HISTORY OF THE WATERGATE AFFAIR (1988); JOSEPH L. SAX, MOUNTAINS WITHOUT HANDRAILS: REFLECTIONS ON THE NATIONAL PARKS (1980); PHILIP SOPER, A THEORY OF LAW (1984); JOSEPH VINING, THE AUTHORITATIVE AND THE AUTHORITARIAN (1986); Milner S. Ball, Stories of Origin and Constitutional Possibilities, 87 MICH L. REV. 2280 (1989).
42. These ideas are most cogently expressed in the works of James Boyd White. See JAMES BOYD WHITE, ACTS OF HOPE: CREATING AUTHORITY IN LITERATURE, LAW, AND POLITICS (1994) (hereinafter WHITE, ACTS OF HOPE); JAMES BOYD WHITE, JUSTICE AS TRANSLATION: AN ESSAY IN CULTURAL AND LEGAL CRITICISM (1990); JAMES BOYD WHITE, HERACLES' BOW: ESSAYS ON THE RHETORIC AND POETICS OF THE LAW (1985); JAMES BOYD WHITE, WHEN WORDS LOSE THEIR MEANING: CONSTITUTIONS AND RECONSTITUTIONS OF LANGUAGE, CHARACTER AND COMMUNITY (1984); JAMES BOYD WHITE, THE LEGAL IMAGINATION (1973); James Boyd White, What Can a Lawyer Learn from Literature?, 102 HARV. L. REV. 2014 (1989) (reviewing RICHARD A. POSNER, LAW AND LITERATURE: A MISUNDERSTOOD RELATION (1988)). Numerous writers explicitly use White's methods. See, e.g., MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW 8-9, 140 (1987); Clark D. Cunningham, The Lawyer as Translator, Representation as Text: Towards an Ethnography of Legal Discourse, 77 CORNELL L. REV. 1298 (1992); Thomas D. Eisele, The Activity of Being a Lawyer: The Imaginative Pursuit of Implications and Possibilities, 54 TENN. L. REV. 345 (1987); Jody Freeman, Constitutive Rhetoric: Law as a Literary Activity, 14 HARV. WOMEN'S L.J. 305 (1991); Kenneth L. Schneyer, Avoiding the Personal Pronoun: The Rhetoric of Display and Camouflage in the Law of Sexual Orientation, 46 RUTGERS L. REV. 1313 (1994); Kenneth L. Schneyer, Talking About Judges, Talking About Women: Constitutive Rhetoric in the Johnson Controls Case, 31 AM. BUS. L.J. 117 (1993). Others, while not citing White directly, clearly use similar approaches. See, e.g., MILNER S. BALL, THE WORD AND THE LAW (1993); CLIFFORD GEERTZ, LOCAL KNOWLEDGE: FURTHER ESSAYS IN INTERPRETIVE ANTHROPOLOGY (1983); L.H. LARUE, POLITICAL DISCOURSE: A CASE HISTORY OF THE WATERGATE AFFAIR (1988); JOSEPH L. SAX, MOUNTAINS WITHOUT HANDRAILS: REFLECTIONS ON THE NATIONAL PARKS (1980); PHILIP SOPER, A THEORY OF LAW (1984); JOSEPH VINING, THE AUTHORITATIVE AND THE AUTHORITARIAN (1986); Milner S. Ball, Stories of Origin and Constitutional Possibilities, 87 MICH L. REV. 2280 (1989).
43. These ideas are most cogently expressed in the works of James Boyd White. See JAMES BOYD WHITE, ACTS OF HOPE: CREATING AUTHORITY IN LITERATURE, LAW, AND POLITICS (1994) (hereinafter WHITE, ACTS OF HOPE); JAMES BOYD WHITE, JUSTICE AS TRANSLATION: AN ESSAY IN CULTURAL AND LEGAL CRITICISM (1990); JAMES BOYD WHITE, HERACLES' BOW: ESSAYS ON THE RHETORIC AND POETICS OF THE LAW (1985); JAMES BOYD WHITE, WHEN WORDS LOSE THEIR MEANING: CONSTITUTIONS AND RECONSTITUTIONS OF LANGUAGE, CHARACTER AND COMMUNITY (1984); JAMES BOYD WHITE, THE LEGAL IMAGINATION (1973); James Boyd White, What Can a Lawyer Learn from Literature?, 102 HARV. L. REV. 2014 (1989) (reviewing RICHARD A. POSNER, LAW AND LITERATURE: A MISUNDERSTOOD RELATION (1988)). Numerous writers explicitly use White's methods. See, e.g., MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW 8-9, 140 (1987); Clark D. Cunningham, The Lawyer as Translator, Representation as Text: Towards an Ethnography of Legal Discourse, 77 CORNELL L. REV. 1298 (1992); Thomas D. Eisele, The Activity of Being a Lawyer: The Imaginative Pursuit of Implications and Possibilities, 54 TENN. L. REV. 345 (1987); Jody Freeman, Constitutive Rhetoric: Law as a Literary Activity, 14 HARV. WOMEN'S L.J. 305 (1991); Kenneth L. Schneyer, Avoiding the Personal Pronoun: The Rhetoric of Display and Camouflage in the Law of Sexual Orientation, 46 RUTGERS L. REV. 1313 (1994); Kenneth L. Schneyer, Talking About Judges, Talking About Women: Constitutive Rhetoric in the Johnson Controls Case, 31 AM. BUS. L.J. 117 (1993). Others, while not citing White directly, clearly use similar approaches. See, e.g., MILNER S. BALL, THE WORD AND THE LAW (1993); CLIFFORD GEERTZ, LOCAL KNOWLEDGE: FURTHER ESSAYS IN INTERPRETIVE ANTHROPOLOGY (1983); L.H. LARUE, POLITICAL DISCOURSE: A CASE HISTORY OF THE WATERGATE AFFAIR (1988); JOSEPH L. SAX, MOUNTAINS WITHOUT HANDRAILS: REFLECTIONS ON THE NATIONAL PARKS (1980); PHILIP SOPER, A THEORY OF LAW (1984); JOSEPH VINING, THE AUTHORITATIVE AND THE AUTHORITARIAN (1986); Milner S. Ball, Stories of Origin and Constitutional Possibilities, 87 MICH L. REV. 2280 (1989).
44. These ideas are most cogently expressed in the works of James Boyd White. See JAMES BOYD WHITE, ACTS OF HOPE: CREATING AUTHORITY IN LITERATURE, LAW, AND POLITICS (1994) (hereinafter WHITE, ACTS OF HOPE); JAMES BOYD WHITE, JUSTICE AS TRANSLATION: AN ESSAY IN CULTURAL AND LEGAL CRITICISM (1990); JAMES BOYD WHITE, HERACLES' BOW: ESSAYS ON THE RHETORIC AND POETICS OF THE LAW (1985); JAMES BOYD WHITE, WHEN WORDS LOSE THEIR MEANING: CONSTITUTIONS AND RECONSTITUTIONS OF LANGUAGE, CHARACTER AND COMMUNITY (1984); JAMES BOYD WHITE, THE LEGAL IMAGINATION (1973); James Boyd White, What Can a Lawyer Learn from Literature?, 102 HARV. L. REV. 2014 (1989) (reviewing RICHARD A. POSNER, LAW AND LITERATURE: A MISUNDERSTOOD RELATION (1988)). Numerous writers explicitly use White's methods. See, e.g., MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW 8-9, 140 (1987); Clark D. Cunningham, The Lawyer as Translator, Representation as Text: Towards an Ethnography of Legal Discourse, 77 CORNELL L. REV. 1298 (1992); Thomas D. Eisele, The Activity of Being a Lawyer: The Imaginative Pursuit of Implications and Possibilities, 54 TENN. L. REV. 345 (1987); Jody Freeman, Constitutive Rhetoric: Law as a Literary Activity, 14 HARV. WOMEN'S L.J. 305 (1991); Kenneth L. Schneyer, Avoiding the Personal Pronoun: The Rhetoric of Display and Camouflage in the Law of Sexual Orientation, 46 RUTGERS L. REV. 1313 (1994); Kenneth L. Schneyer, Talking About Judges, Talking About Women: Constitutive Rhetoric in the Johnson Controls Case, 31 AM. BUS. L.J. 117 (1993). Others, while not citing White directly, clearly use similar approaches. See, e.g., MILNER S. BALL, THE WORD AND THE LAW (1993); CLIFFORD GEERTZ, LOCAL KNOWLEDGE: FURTHER ESSAYS IN INTERPRETIVE ANTHROPOLOGY (1983); L.H. LARUE, POLITICAL DISCOURSE: A CASE HISTORY OF THE WATERGATE AFFAIR (1988); JOSEPH L. SAX, MOUNTAINS WITHOUT HANDRAILS: REFLECTIONS ON THE NATIONAL PARKS (1980); PHILIP SOPER, A THEORY OF LAW (1984); JOSEPH VINING, THE AUTHORITATIVE AND THE AUTHORITARIAN (1986); Milner S. Ball, Stories of Origin and Constitutional Possibilities, 87 MICH L. REV. 2280 (1989).
45. These ideas are most cogently expressed in the works of James Boyd White. See JAMES BOYD WHITE, ACTS OF HOPE: CREATING AUTHORITY IN LITERATURE, LAW, AND POLITICS (1994) (hereinafter WHITE, ACTS OF HOPE); JAMES BOYD WHITE, JUSTICE AS TRANSLATION: AN ESSAY IN CULTURAL AND LEGAL CRITICISM (1990); JAMES BOYD WHITE, HERACLES' BOW: ESSAYS ON THE RHETORIC AND POETICS OF THE LAW (1985); JAMES BOYD WHITE, WHEN WORDS LOSE THEIR MEANING: CONSTITUTIONS AND RECONSTITUTIONS OF LANGUAGE, CHARACTER AND COMMUNITY (1984); JAMES BOYD WHITE, THE LEGAL IMAGINATION (1973); James Boyd White, What Can a Lawyer Learn from Literature?, 102 HARV. L. REV. 2014 (1989) (reviewing RICHARD A. POSNER, LAW AND LITERATURE: A MISUNDERSTOOD RELATION (1988)). Numerous writers explicitly use White's methods. See, e.g., MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW 8-9, 140 (1987); Clark D. Cunningham, The Lawyer as Translator, Representation as Text: Towards an Ethnography of Legal Discourse, 77 CORNELL L. REV. 1298 (1992); Thomas D. Eisele, The Activity of Being a Lawyer: The Imaginative Pursuit of Implications and Possibilities, 54 TENN. L. REV. 345 (1987); Jody Freeman, Constitutive Rhetoric: Law as a Literary Activity, 14 HARV. WOMEN'S L.J. 305 (1991); Kenneth L. Schneyer, Avoiding the Personal Pronoun: The Rhetoric of Display and Camouflage in the Law of Sexual Orientation, 46 RUTGERS L. REV. 1313 (1994); Kenneth L. Schneyer, Talking About Judges, Talking About Women: Constitutive Rhetoric in the Johnson Controls Case, 31 AM. BUS. L.J. 117 (1993). Others, while not citing White directly, clearly use similar approaches. See, e.g., MILNER S. BALL, THE WORD AND THE LAW (1993); CLIFFORD GEERTZ, LOCAL KNOWLEDGE: FURTHER ESSAYS IN INTERPRETIVE ANTHROPOLOGY (1983); L.H. LARUE, POLITICAL DISCOURSE: A CASE HISTORY OF THE WATERGATE AFFAIR (1988); JOSEPH L. SAX, MOUNTAINS WITHOUT HANDRAILS: REFLECTIONS ON THE NATIONAL PARKS (1980); PHILIP SOPER, A THEORY OF LAW (1984); JOSEPH VINING, THE AUTHORITATIVE AND THE AUTHORITARIAN (1986); Milner S. Ball, Stories of Origin and Constitutional Possibilities, 87 MICH L. REV. 2280 (1989).
46. These ideas are most cogently expressed in the works of James Boyd White. See JAMES BOYD WHITE, ACTS OF HOPE: CREATING AUTHORITY IN LITERATURE, LAW, AND POLITICS (1994) (hereinafter WHITE, ACTS OF HOPE); JAMES BOYD WHITE, JUSTICE AS TRANSLATION: AN ESSAY IN CULTURAL AND LEGAL CRITICISM (1990); JAMES BOYD WHITE, HERACLES' BOW: ESSAYS ON THE RHETORIC AND POETICS OF THE LAW (1985); JAMES BOYD WHITE, WHEN WORDS LOSE THEIR MEANING: CONSTITUTIONS AND RECONSTITUTIONS OF LANGUAGE, CHARACTER AND COMMUNITY (1984); JAMES BOYD WHITE, THE LEGAL IMAGINATION (1973); James Boyd White, What Can a Lawyer Learn from Literature?, 102 HARV. L. REV. 2014 (1989) (reviewing RICHARD A. POSNER, LAW AND LITERATURE: A MISUNDERSTOOD RELATION (1988)). Numerous writers explicitly use White's methods. See, e.g., MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW 8-9, 140 (1987); Clark D. Cunningham, The Lawyer as Translator, Representation as Text: Towards an Ethnography of Legal Discourse, 77 CORNELL L. REV. 1298 (1992); Thomas D. Eisele, The Activity of Being a Lawyer: The Imaginative Pursuit of Implications and Possibilities, 54 TENN. L. REV. 345 (1987); Jody Freeman, Constitutive Rhetoric: Law as a Literary Activity, 14 HARV. WOMEN'S L.J. 305 (1991); Kenneth L. Schneyer, Avoiding the Personal Pronoun: The Rhetoric of Display and Camouflage in the Law of Sexual Orientation, 46 RUTGERS L. REV. 1313 (1994); Kenneth L. Schneyer, Talking About Judges, Talking About Women: Constitutive Rhetoric in the Johnson Controls Case, 31 AM. BUS. L.J. 117 (1993). Others, while not citing White directly, clearly use similar approaches. See, e.g., MILNER S. BALL, THE WORD AND THE LAW (1993); CLIFFORD GEERTZ, LOCAL KNOWLEDGE: FURTHER ESSAYS IN INTERPRETIVE ANTHROPOLOGY (1983); L.H. LARUE, POLITICAL DISCOURSE: A CASE HISTORY OF THE WATERGATE AFFAIR (1988); JOSEPH L. SAX, MOUNTAINS WITHOUT HANDRAILS: REFLECTIONS ON THE NATIONAL PARKS (1980); PHILIP SOPER, A THEORY OF LAW (1984); JOSEPH VINING, THE AUTHORITATIVE AND THE AUTHORITARIAN (1986); Milner S. Ball, Stories of Origin and Constitutional Possibilities, 87 MICH L. REV. 2280 (1989).
47. These ideas are most cogently expressed in the works of James Boyd White. See JAMES BOYD WHITE, ACTS OF HOPE: CREATING AUTHORITY IN LITERATURE, LAW, AND POLITICS (1994) (hereinafter WHITE, ACTS OF HOPE); JAMES BOYD WHITE, JUSTICE AS TRANSLATION: AN ESSAY IN CULTURAL AND LEGAL CRITICISM (1990); JAMES BOYD WHITE, HERACLES' BOW: ESSAYS ON THE RHETORIC AND POETICS OF THE LAW (1985); JAMES BOYD WHITE, WHEN WORDS LOSE THEIR MEANING: CONSTITUTIONS AND RECONSTITUTIONS OF LANGUAGE, CHARACTER AND COMMUNITY (1984); JAMES BOYD WHITE, THE LEGAL IMAGINATION (1973); James Boyd White, What Can a Lawyer Learn from Literature?, 102 HARV. L. REV. 2014 (1989) (reviewing RICHARD A. POSNER, LAW AND LITERATURE: A MISUNDERSTOOD RELATION (1988)). Numerous writers explicitly use White's methods. See, e.g., MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW 8-9, 140 (1987); Clark D. Cunningham, The Lawyer as Translator, Representation as Text: Towards an Ethnography of Legal Discourse, 77 CORNELL L. REV. 1298 (1992); Thomas D. Eisele, The Activity of Being a Lawyer: The Imaginative Pursuit of Implications and Possibilities, 54 TENN. L. REV. 345 (1987); Jody Freeman, Constitutive Rhetoric: Law as a Literary Activity, 14 HARV. WOMEN'S L.J. 305 (1991); Kenneth L. Schneyer, Avoiding the Personal Pronoun: The Rhetoric of Display and Camouflage in the Law of Sexual Orientation, 46 RUTGERS L. REV. 1313 (1994); Kenneth L. Schneyer, Talking About Judges, Talking About Women: Constitutive Rhetoric in the Johnson Controls Case, 31 AM. BUS. L.J. 117 (1993). Others, while not citing White directly, clearly use similar approaches. See, e.g., MILNER S. BALL, THE WORD AND THE LAW (1993); CLIFFORD GEERTZ, LOCAL KNOWLEDGE: FURTHER ESSAYS IN INTERPRETIVE ANTHROPOLOGY (1983); L.H. LARUE, POLITICAL DISCOURSE: A CASE HISTORY OF THE WATERGATE AFFAIR (1988); JOSEPH L. SAX, MOUNTAINS WITHOUT HANDRAILS: REFLECTIONS ON THE NATIONAL PARKS (1980); PHILIP SOPER, A THEORY OF LAW (1984); JOSEPH VINING, THE AUTHORITATIVE AND THE AUTHORITARIAN (1986); Milner S. Ball, Stories of Origin and Constitutional Possibilities, 87 MICH L. REV. 2280 (1989).
48. See supra note 15 and accompanying text.
49. In a delightfully self-contradictory piece of logic, one court held that a change in the zoning ordinance that became official after a land contract was signed, but which was retroactive to the publication of the first notice four days before the contract was signed, was not an "existing" zoning law about which the parties had notice under the terms of the agreement, but did show common, mistaken assumption made by the parties about the rights the purchaser had at the time the contract was made. Dover Pool & Racquet Club, Inc. v. Brooking, 322 N.E. 2d 168, 170-71 (Mass. 1974).
50. For an example of a rescission granted because of mistaken water access, see Thieme v. Worst, 745 P.2d 1076 (Idaho Ct. App. 1987).
51. See Ledyet v. City of Mountain Home, 812 P.2d 755 (Idaho Ct. App. 1991), in which such a mistake was held to justify reformation of the contract.
52. I am indebted to Janice Okoomian for raising this point.
53. See Kull, supra note 1, at 3-4 n.7 (The only "value" that exists today is based on a prediction of what will happen tomorrow). Further, Kull points out that in cases of "mistakes" about the future, a party may escape a contract on the grounds of frustration of purpose. Consequently, "this is a distinction without a difference." Id. at 3.
54. Consider, for example, the breach of an express warranty under the Uniform Commercial Code. Whether the affirmation or promise concerns a present condition or the future performance of the goods, it is a warranty if it has become part of the basis of the bargain. If it is (or later turns out to be) untrue, the buyer may sue for breach. See U.C.C. § 2-313 (1977). I owe the term "tristinction" to Frederick Schauer.
55. 2 RESTATEMENT (SECOND) OF CONTRACTS § 152 cmt. a (1981). This precise wording also appears in Farnsworth's treatise. FARNSWORTH, supra note 1, §9.3 at 516. Farnsworth was the reporter for the Second Restatement, so this correspondence is hardly surprising.
56. 2 RESTATEMENT (SECOND) OF CONTRACTS § 152 cmt. b (1981).
57. Id. §§ 152, 154.
58. Id. § 154 cmt. a.
59. See supra note 14 and accompanying text.
60. Here is Dalton's actual wording: Section 154(a) imagines that the parties share a basic assumption about a circumstance of their deal (in which they are both mistaken), but that their deal also focuses on the question of what should be done if they are mistaken, and incorporates an allocation of the costs of the mistake. This unlikely scenario requires a large-scale inquiry into manifestations of intent: to know what are and are not basic assumptions of the contract, and to know what language or circumstance is evidence of risk allocation. . . . Section 154(b) focuses on the individual party and not the agreement, and within that framework adopts a "fault" standard: The party who walks into a deal aware that his knowledge of the circumstances is incomplete, but goes ahead with the deal and then suffers when things turn out other than he had hoped, has only himself to blame. . . . But we can never know that someone is "aware" of his limited knowledge; at best we objectify the standard and ask whether the circumstances indicate awareness, or whether he should have been aware. Section 154(c) can be seen as the final honest moment of section 154, a moment not without parallels elsewhere in the Restatement. In section 154, as elsewhere, an initial attempt is made to constrain judicial discretion by articulating standards governed by one or more of the basic dichotomies. The concession to reality does not appear until the end, when the judge is provided with another option: In unspecified circumstances, he may make his decision on some "other" basis, which must be "reasonable" or "just." . . . By what criteria could the court make this judgment and still avoid the charge that it has merely exercised an illegitimate dispensing power? Could it ever be reasonable to allocate risk save on the basis of the manifested agreement, as subsection (a) suggests, or on the basis of objectified fault, as subsection (b) provides? Further, has not our investigation of the particular failures of subsections (a) and (b) shown them to be merely more elaborately disguised versions of subsection (c)? Dalton, supra note 2, at 1064-65.
61. Presumably there are situations in which one party agrees to bear the risk of a fact which she believes to be a "sure thing" in order to quiet the fears of the other party. In commercial real estate transactions nowadays, for example, it is commonplace for the contract to contain indemnification clauses concerning environmental damage and cleanup costs. The party agreeing to indemnify the other party for such costs frequently would not agree to do so if it believed there were any such costs - and if a buyer, probably would not agree to enter the transaction at all if such costs were expected. Indeed, most indemnitors would be unwilling to sign such a clause without first engaging in careful research to make "sure" that no appreciable environmental damage exists. Such indemnification clauses, as well as representation and warranty clauses, are frequently inserted in order to cause the indemnitor/warrantor to engage in precisely that due diligence. But that situation is the one in which mistakes are least likely to occur, precisely because of the due diligence and research that is undertaken to prevent them. However, I am indebted to Daniel T. Ostas for raising the point.
62. See, e.g., Lenawee County Bd. of Health v. Messerly, 331 N.W.2d 203, 210-11 (Mich. 1982); Garb-Ko v. Lan sing-Lewis Services, 423 N.W.2d 355, 357-58 (Mich. App. 1988); Dingement v. Reffitt, 393 N.W.2d 632, 635 (Mich. App. 1986).
63. 331 N.W.2d 203, (Mich. 1982).
64. Id. at 210-11.
65. 393 N.W.2d 632 (Mich. Ct. App. 1986).
66. Id. at 635.
67. Kull, supra note 1, at 2 (emphasis and brackets in original).
68. This sounds like a negligence, recklessness or assumption of risk standard from tort law, although neither the courts nor the Restatement (Second) generally refer to it that way. If it is a question of negligence or recklessness, then the exercise of due care on the part of the adversely affected party, or his actual knowledge of the risk he faced, is surely a question to be determined by the fact finder. In this connection, it is interesting to note that the appellate courts rarely treat the question as a factual issue, but simply "find," in their own conclusory way, that the party did or did not use the care required. See, e.g., infra notes 46-49 and accompanying text.
69. Beasley v. Medin, 479 N.W.2d 95, 98 (Minn. Ct. App. 1992). Furthermore, the court held that this was merely a mistake of value. Id.
70. Beachcomber Coins, Inc. v. Boskett, 400 A.2d 78, 79 (N.J. Super. Ct. App. Div. 1979).
71. Gartner v. Eikill, 319 N.W.2d 397, 399 (Minn. 1982).
72. Renner v. Kehl, 722 P.2d 262, 265 n.2 (Ariz. 1986).
73. Clare Dalton suggests that many binarisms in contract law exist in order to reassure us that we can know and control "the boundary between self and other." Dalton, supra note 2, at 1113. Hence the revelation that contract dualisms are false is both painful and valuable in that it shows us the shadowy and uncertain nature of this boundary. Id.
74. I would like to address my use of "we," "us" and "our" to describe the person(s) participating in the contracting process, the mistakes, and the "culture" I am describing Such a device can be dangerously seductive, because it subtlely assumes that the writer and reader share the same beliefs, take the same actions, and are on the same team I use this device because I imagine myself to be part of a community that has. at least to some extent, similar experiences and perceptions. Or, to put it rhetorically, I am inviting my reader to form such a community with me. See WHITE, ACTS OF HOPE, supra note 24, at 80-81.
75. It bears repeating here that I am attempting to restate the meaning the law has to the participants within it, rather than giving an "objective account" (whatever that means) of the law's function. I would not argue that the coercive power of the state is actually used in only those cases where there is wide consensus, but rather that it is a common belief that that is true, and, indeed, that the belief is a cornerstone of our self-image as a democratic people.
76. Another way of looking at it would be to say that the land of universal enforcement assumes that you have control over whether you make promises in the first place (which is usually true). Your liability, then, would flow not from your failure to keep the promise but from your folly in making it. Promisors would become insurers not ensurers) of the future. But even this implies that it is the business of all people or at least all promisors) to provide that insurance - to be responsible for the future.
77. It also rather nicely explains why mistake and frustration can be seen as a single doctrine rather than two separate ones. See Kull, supra note 1. Frustration (as well as impossibility and impracticability) involves changes in the nature of the vectors or in other, unforeseen vectors. The result, however, is the same: The shape of the relationship is warped by the error.
78. 33 N.W. 919 (Mich. 1887).
79. 25 N.W. 42 (Wise. 1885).