Relational contracts floating on a sea of custom? Thoughts about the ideas of Ian Macneil and Lisa Bernstein

Northwestern University Law Review

Volumn 94, Issue 3, 2000, Pages 775-804

  Macaulay, Stewart ^a  

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EID: 0041525057     PISSN: 00293571     EISSN: None     Source Type: Journal    
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References (138)

1. Lisa Bernstein, Opting Out of the Legal System: Extralegal Contractual Relations in the Diamond Industry, 21 J. LEGAL STUD. 115 (1992).
2. Lisa Bernstein, The Questionable Empirical Basis of Article 2's Incorporation Strategy: A Preliminary Study, 66 U. CHI. L. REV. 710 (1999) [hereinafter Bernstein, Questionable Basis].
3. Lisa Bernstein, Merchant Law in a Merchant Court: Rethinking the Code's Search for Immanent Business Norms, 144 U. PA. L. REV. 1765 (1996) [hereinafter Bernstein, Merchant Law].
4. IAN R. MACNEIL, CASES AND MATERIALS ON CONTRACTS: EXCHANGE TRANSACTIONS AND RELATIONSHIPS (1971).
5. FRIEDRICH KESSLER & MALCOLM PITMAN SHARP, CONTRACTS: CASES AND MATERIALS (1953).
6. STEWART MACAULAY ET AL., CONTRACTS: LAW IN ACTION (1995) [hereinafter LAW IN ACTION]. For comment on LAW IN ACTION, see Jean Braucher, The Afterlife of Contract, 90 NW. U. L. REV. 48 (1995); William J. Woodward, Jr., Clearing the Underbrush for Real-Life Contracting, 24 L. & SOC. INQUIRY 99 (1999).
7. STEWART MACAULAY ET AL., CONTRACTS: LAW IN ACTION (1995) [hereinafter LAW IN ACTION]. For comment on LAW IN ACTION, see Jean Braucher, The Afterlife of Contract, 90 NW. U. L. REV. 48 (1995); William J. Woodward, Jr., Clearing the Underbrush for Real-Life Contracting, 24 L. & SOC. INQUIRY 99 (1999).
8. STEWART MACAULAY ET AL., CONTRACTS: LAW IN ACTION (1995) [hereinafter LAW IN ACTION]. For comment on LAW IN ACTION, see Jean Braucher, The Afterlife of Contract, 90 NW. U. L. REV. 48 (1995); William J. Woodward, Jr., Clearing the Underbrush for Real-Life Contracting, 24 L. & SOC. INQUIRY 99 (1999).
9. Robert W. Gordon, Macaulay, Macneil, and the Discovery of Solidarity and Power in Contract Law, 1985 WIS. L. REV. 565, 578. This article also contains Gordon's wonderful line: "Freedom of contract means, among other things, never having to say you are sorry." Ibid.
10. Robert W. Gordon, Macaulay, Macneil, and the Discovery of Solidarity and Power in Contract Law, 1985 WIS. L. REV. 565, 578. This article also contains Gordon's wonderful line: "Freedom of contract means, among other things, never having to say you are sorry." Ibid.
11. I reviewed relational contract theory, and devoted particular emphasis to Ian Macneil's work, in Stewart Macaulay, Long-Term Continuing Relations: The American Experience Regulating Dealerships and Franchises, in FRANCHISING AND THE LAW: THEORETICAL AND COMPARATIVE APPROACHES IN EUROPE AND THE UNITED STATES (Christian Joerges ed. 1991). For the best short review of Macneil's work, see William C. Whitford, Ian Macneil's Contribution to Contracts Scholarship, 1985 WIS. L. REV. 545.
12. I reviewed relational contract theory, and devoted particular emphasis to Ian Macneil's work, in Stewart Macaulay, Long-Term Continuing Relations: The American Experience Regulating Dealerships and Franchises, in FRANCHISING AND THE LAW: THEORETICAL AND COMPARATIVE APPROACHES IN EUROPE AND THE UNITED STATES (Christian Joerges ed. 1991). For the best short review of Macneil's work, see William C. Whitford, Ian Macneil's Contribution to Contracts Scholarship, 1985 WIS. L. REV. 545.
13. Selmer Co. v. Blakeslee-Midwest Co., 704 F.2d 924 (7th Cir. 1983) ("[P]eople who desperately want to settle for cash - who simply could not afford to litigate - would be unable to settle, because they could not enter into a binding settlement; being desperate, they could always get it set aside later on grounds of duress. It is a detriment, not a benefit, to one's long-run interests not to be able to make a binding settlement.").
14. Roberto Mangabeira Unger, The Critical Legal Studies Movement, 96 HARV. L. REV. 561, 629 (1983).
15. LAW IN ACTION, supra note 6, at 622.
16. IAN R. MACNEIL, THE NEW SOCIAL CONTRACT 45 (1980).
17. Id.at 92, 102.
18. Id. at 94.
19. Id. at 103.
20. Id.
21. Dilbert's subversive messages are taped and pinned up in many business offices as a way of commenting on the absurdity of office work in the 1990s. In Dilbert those who know things are powerless; those who know nothing run corporations. From time to time Scott Adams, who draws Dilbert, deals with matters of interest to contracts teachers. Two of my favorites involve contracts created by the magic of tearing the shrinkwrap on packages of computer software. In a cartoon dated Jan. 14, 1997, Dilbert is talking to Dogbert. He says, "I didn't read all of the shrink-wrap license agreement on my new software until after I opened it." He continues in the next panel: "Apparently I agreed to spend the rest of my life as a towel boy in Bill Gates' new mansion." Dogbert says, "Call your lawyer." In the next panel, Dilbert says, "Too late. He opened software yesterday. Now he's Bill's laundry boy." Dogbert responds: "It must be dangerous for lawyers to iron pants. They'd always have one hand in a pocket." In another dated April 7, 1997, Dilbert reads: "Software License: By opening this package, you agree . . . ." In the next panel, the license terms continue: "[Y]ou will not make copies or export to despotic nations. You will submit to strip searches in your home . . . ." In the next panel, Dilbert opens the package. An employee of the software company is pulling on a rubber glove and says, "Frankly, both of us would have been happier if you had just walked away." Purchasers of software can sign a petition calling for warranty protection at 〈http://www.zdnet.com/anchordesk/smbg/index.html〉. Somehow, signing a petition on the web hardly seems like the revolution people talked about at the University of Wisconsin-Madison in the 1960s.
22. See Richard Bernstein, "Roger and Me": Documentary? Satire? Or Both?, N.Y. TIMES, Feb. 1, 1990, at C20.
23. Ian R. Macneil, Restatement (Second) of Contracts and Presentation, 60 VA. L. REV. 589 (1974).
24. Ian R. Macneil, Economic Analysis of Contractual Relations: Its Shortfalls and the Need for a "Rich Classificatory Apparatus," 75 NW. U. L. REV. 1018, 1041 (1981).
25. LAW IN ACTION, supra note 6, at 683-685.
26. Ian R. Macneil, Bureaucracy and Contracts of Adhesion, 22 OSGOODE HALL L. J. 5 (1984).
27. Id. at 5-6.
28. Id. at 26.
29. In ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996), Judge Easterbrook upheld a computer software maker's license arrangement restricting what a buyer could do with the software. He stated: "Every box containing its consumer product declares that the software comes with restrictions stated in an enclosed license." Id. at 1450. As a result, ProCD made its customers an offer: "Notice on the outside, terms on the inside, and a right to return the software for a refund if the terms are unacceptable . . . ." Id. at 1451. Under U.C.C. § 2-204(1), "[a] contract for sale of goods may be made in any manner sufficient to show agreement." Judge Easterbrook asserted that "ProCD proposed a contract that a buyer would accept by using the software after having an opportunity to read the license at leisure." Id. at 1452. There are no cases holding that the U.C.C. requires "the ordinary terms found in shrinkwrap licenses require any special prominence." Id. at 1453. When we look at a ProCD box, Judge Easterbrook's "offer" becomes pure fantasy. The notice is printed on the bottom flap of the box, flanked by a statement in large type that there are 250 million telephone numbers on 11 CD-Roms and the bar code for the scanner. The notice is printed in 6-point type in a space 2 3/4th inches by 1 inch. The notice that there are terms and conditions inside the box begins in the third sentence in this paragraph. Judge Easterbrook relies on U.C.C. § 2-204(1) that talks about making a contract "in any manner sufficient to show agreement." "Agreement," however, is a term defined in the Code. Section 1-201(3) says, "'Agreement' means the bargain of the parties in fact . . . ." Using a conventional objective theory, ProCD's officials had no reason to think that the buyers of its software knew of the offer that Judge Easterbrook sees them making. Perhaps, as Judge Easterbrook says, Article 2 does not require the notice that there is an offer inside the box to be displayed prominently. But if we are looking for the bargain of the parties "in fact," it has to be displayed so that a reasonable person might find it. If ProCD's motive had been to hide the clause, it couldn't have done better. See Gladden v. General Motors Corp., 83 N.J. 320, 332, 416 A.2d 394, 400 (1980) (The "question is whether the terms of the remedy limitation . . . are so deceptive, confusing, or misleading so as to constitute an adequate communication to purchasers . . . ."). The communication and choice requirement for making a contract is abandoned to an even greater degree in a Washington case that relies on the ProCD opinion. See M.A. Mortenson Co., Inc. v. Timberline Software Corp., 93 Wash. App. 819, 970 P.2d 803 (1999).
30. 26 In Hill v. Gateway 2000, Inc., 105 F.3d 1148 (7th Cir. 1997), a consumer had ordered a computer by telephone and paid by credit card. When the box arrived it contained a computer and an instruction book with a collection of terms and conditions. This document said that these terms and conditions governed unless the consumer returned the computer within thirty days. One of the terms was an arbitration clause. Judge Easterbrook upheld the arbitration clause. He pushed aside considerations of choice or responsibility of the consumers for leading Gateway to think that they accepted its terms: "[T]He Hills knew before they ordered the computer that the carton would include some important terms, and they did not seek to discover these in advance. Gateway's ads state that their products come with limited warranties and lifetime support." Id. at 1150. The Hills, he continued, could have asked Gateway to send a copy of its terms before they placed an order, they could have consulted public sources such as Gateway's website, or they could have inspected the documents after the box was delivered. "By keeping the computer beyond 30 days, the Hills accepted Gateway's offer, including the arbitration clause." Ibid. Judge Easterbrook, perhaps without knowing it, was following Macneil's position. The judge stated: "Practical considerations support allowing vendors to enclose the full legal terms with their products. Cashiers cannot be expected to read legal documents to customers before ringing up sales." Id. at 1149.
31. See Stewart Macaulay, Private Government, in LAW AND THE SOCIAL SCIENCES 445 (Leon Lipson & Stanton Wheeler eds., 1986).
32. 676 N. Y. Supp. 2d 569 (App. Div. 1998).
33. I see Gateway's actions as a scam, because the provision was hidden where few, if any, customers would see it before they discovered that their computer would not work and that Gateway would not fix it. Moreover, even if they had found the provision printed on the instruction manual in the box containing their computer, Gateway's clause incorporated the arbitration rules by reference rather than disclosing them. Finally, I think most customers would have been surprised by the practical effect of the provision. In the guise of alternative dispute resolution, Gateway was making its decisions final and unreviewable. Had Gateway published in large type in their advertising and on their website something such as "You must trust us to fix your computer. If we are unable to fix it, you will have no right to assert any rights in any court," it would not have been a scam. Of course, Gateway might have worried that it would not sell as many computers had it made such a disclosure. So it tricked its customers. After its loss before the New York courts, Gateway now does disclose its arbitration clause in its catalog and on its website. Reasonable people might wonder whether Gateway consumers have any practical rights under the new clause.
34. Gateway's clause called for arbitration under the Rules of Conciliation and Arbitration of the International Chamber of Commerce in Chicago. Under those rules, a consumer seeking to arbitrate a claim against Gateway had to advance fees of $4000. $2000 of this amount was not refundable even if the consumer prevailed in arbitration. If the consumer did not prevail, she would have to pay Gateway's legal fees. A consumer could not discover the content of these rules easily; nothing supplied by Gateway disclosed them.
35. This was the test advocated in Note, Economic Duress After the Demise of Free Will Theory: A Proposed Tort Analysis, 53 IOWA L. REV. 892 (1968). The test was accepted by a Wisconsin intermediate appellate court in Wurtz v. Fleischman, 89 Wis. 2d 291, 278 N.W.2d 266 (1979). The Wurtz case was reversed on other grounds in Wurtz v. Fleischman, 97 Wis. 2d 100, 293 N.W.2d 155 (1980). However, in its opinion, the Supreme Court of Wisconsin offered much dicta based on the classic will theory. The law of Wisconsin concerning economic duress is most unclear.
36. See Selmer v. Blakeslee-Midwest Co., 704 F.2d 924 (7th Cir. 1983), reprinted in Law in Action, supra note 6, at 813.
37. See Duncan Kennedy, Distributive and Paternalist Motives in Contract and Tort Law, with Special Reference to Compulsory Terms and Unequal Bargaining Power, 41 MD. L. REV. 563, 620-21, 638-49 (1982), reprinted in LAW IN ACTION, supra note 6, at 598, 780; Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685, 1178 (1976), reprinted in LAW IN ACTION, supra note 6, at 780.
38. See Duncan Kennedy, Distributive and Paternalist Motives in Contract and Tort Law, with Special Reference to Compulsory Terms and Unequal Bargaining Power, 41 MD. L. REV. 563, 620-21, 638-49 (1982), reprinted in LAW IN ACTION, supra note 6, at 598, 780; Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685, 1178 (1976), reprinted in LAW IN ACTION, supra note 6, at 780.
39. See Duncan Kennedy, Distributive and Paternalist Motives in Contract and Tort Law, with Special Reference to Compulsory Terms and Unequal Bargaining Power, 41 MD. L. REV. 563, 620-21, 638-49 (1982), reprinted in LAW IN ACTION, supra note 6, at 598, 780; Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685, 1178 (1976), reprinted in LAW IN ACTION, supra note 6, at 780.
40. See Duncan Kennedy, Distributive and Paternalist Motives in Contract and Tort Law, with Special Reference to Compulsory Terms and Unequal Bargaining Power, 41 MD. L. REV. 563, 620-21, 638-49 (1982), reprinted in LAW IN ACTION, supra note 6, at 598, 780; Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685, 1178 (1976), reprinted in LAW IN ACTION, supra note 6, at 780.
41. Leon Trakman, The Effect of Illegality in the Law of Contract: Suggestions for Reform, 55 Canadian Bar Review/La Revue du Barruea Canadien 627, 652-654 (1977), reprinted in LAW IN ACTION, supra note 6, at 548-549.
42. Leon Trakman, The Effect of Illegality in the Law of Contract: Suggestions for Reform, 55 Canadian Bar Review/La Revue du Barruea Canadien 627, 652-654 (1977), reprinted in LAW IN ACTION, supra note 6, at 548-549.
43. Ian R. Macneil, The New Social Contract 45, 56-7, 91, 94, 102-103 (1980), reprinted in LAW IN ACTION, supra note 6, at 621-23; Ian R. Macneil, Bureaucracy and Contracts of Adhesion, 22 Osgoode Hall L.J. 5 (1984), summarized in LAW IN ACTION, supra note 6, at 683-684.
44. Ian R. Macneil, The New Social Contract 45, 56-7, 91, 94, 102-103 (1980), reprinted in LAW IN ACTION, supra note 6, at 621-23; Ian R. Macneil, Bureaucracy and Contracts of Adhesion, 22 Osgoode Hall L.J. 5 (1984), summarized in LAW IN ACTION, supra note 6, at 683-684.
45. Ian R. Macneil, The New Social Contract 45, 56-7, 91, 94, 102-103 (1980), reprinted in LAW IN ACTION, supra note 6, at 621-23; Ian R. Macneil, Bureaucracy and Contracts of Adhesion, 22 Osgoode Hall L.J. 5 (1984), summarized in LAW IN ACTION, supra note 6, at 683-684.
46. Ian R. Macneil, The New Social Contract 45, 56-7, 91, 94, 102-103 (1980), reprinted in LAW IN ACTION, supra note 6, at 621-23; Ian R. Macneil, Bureaucracy and Contracts of Adhesion, 22 Osgoode Hall L.J. 5 (1984), summarized in LAW IN ACTION, supra note 6, at 683-684.
47. I always hope that students will see that such a statute would be largely symbolic because of cost barriers to litigation that are increased when extremely qualitative standards are adopted. See William C. Whitford, Contract Law and the Control of Standardised Terms in Consumer Contracts: An American Report, 3 EUROPEAN REVIEW OF PRIVATE LAW 193, 203, 207 (1995). Moreover, as I stress in class, defendants worth suing usually are corporations that are not citizens of the state where the transaction took place. Diversity of citizenship usually means a trip through the wonderland of the federal courts. Over the last two decades, the Seventh Circuit's reading of Wisconsin statutes and cases has been funny or sad, depending on your point of view. As was true in the ProCD case, supra note 25, that court often embarks on a frolic of its own rather than attempting to do what a Wisconsin court would do.
48. See supra note 22.
49. A Symposium Honoring the Scholarship of Ian Roderick Macneil (on file with the Northwestern University Law Review).
50. A Symposium Honoring the Scholarship of Ian Roderick Macneil (on file with the Northwestern University Law Review).
51. I hope that it is not necessary to cite George and Ira Gershwin's Porgy and Bess, but i realize that my musical taste is about forty years out of date.
52. Ian R. Macneil, Efficient Breach of Contract: Circles in the Sky, 68 VA. L. REV. 947 (1982).
53. ARTHUR M. OKUN, PRICES & QUANTITIES: A MACROECONOMIC ANALYSIS 134-78 (1981)
54. ROBERTO MANGABEIRA UNGER, LAW IN MODERN SOCIETY: TOWARD A CRITICISM OF SOCIAL THEORY 11-12 (1976).
55. ROBERT C. ELLICKSON, ORDER WITHOUT LAW: HOW NEIGHBORS SETTLE DISPUTES 147 (1991) In a speech at a Law and Society Association meeting, Leff offered the image of the free market marching northwest from the University of Chicago along the Illinois toll way while the class struggle was marching southeast from the University of Wisconsin along the same road. He imagined they might meet for the decisive battle at the McDonald's at the Belvedere oasis.
56. See, e.g., ELLICKSON, supra note 43; Victor P. Goldberg, Price Adjustments in Long-Term Contracts, 1985 WIS. L. REV. 527; Ian Ayres, Never Confuse Efficiency with a Liver Complaint, 1997 WIS. L. REV. 503; Edward Lorenz, Trust, Contract and Economic Cooperation, 23 CAMBRIDGE J. OF ECON. 301 (1999).
57. See, e.g., ELLICKSON, supra note 43; Victor P. Goldberg, Price Adjustments in Long-Term Contracts, 1985 WIS. L. REV. 527; Ian Ayres, Never Confuse Efficiency with a Liver Complaint, 1997 WIS. L. REV. 503; Edward Lorenz, Trust, Contract and Economic Cooperation, 23 CAMBRIDGE J. OF ECON. 301 (1999).
58. See, e.g., ELLICKSON, supra note 43; Victor P. Goldberg, Price Adjustments in Long-Term Contracts, 1985 WIS. L. REV. 527; Ian Ayres, Never Confuse Efficiency with a Liver Complaint, 1997 WIS. L. REV. 503; Edward Lorenz, Trust, Contract and Economic Cooperation, 23 CAMBRIDGE J. OF ECON. 301 (1999).
59. Friedman and Galanter went to law school there; Galanter and I were Bigelow Teaching Fellows at the same time.
60. Lawrence M. Friedman, Legal Rules and the Process of Social Change, 19 STAN. L. REV. 786, 799-807 (1967).
61. Marc Galanter, Why the Haves Come Out Ahead: Speculations on the Limits of Legal Change, 9 LAW & SOC'Y Rev. 95 (1974).
62. Stewart Macaulay, Law and the Behavioral Sciences: Is There Any There There?, 6 LAW & POL'Y 149, 152 (1984).
63. See Stewart Macaulay, Restitution in Context, 107 U. PA. L. REV. 1133, 1142 nn. 25, 36 (1959); Stewart Macaulay, Justice Traynor and the Law of Contracts, 13 STAN. L. REV. 812, 813 n.3, 852 n.117, 856 n.127, 857 n.128 (1961).
64. See Stewart Macaulay, Restitution in Context, 107 U. PA. L. REV. 1133, 1142 nn. 25, 36 (1959); Stewart Macaulay, Justice Traynor and the Law of Contracts, 13 STAN. L. REV. 812, 813 n.3, 852 n.117, 856 n.127, 857 n.128 (1961).
65. For a much more critical reaction to Bernstein's position on trade usage, see Clayton P. Gillette, Harmony and Stasis in Trade Usages for International Sales, 39 VA. J. INT'L L. 707, 710 n.10 (1999) ("I find Professor Bernstein's assertions about the scarcity of custom unconvincing . . . . [I]t is easy to point to substantial evidence of custom in commercial law. Notwithstanding Professor Bernstein's efforts to distinguish written and unwritten customs, the existence of such documents as the Uniform Customs and Practice for Documentary Credits and INCOTERMS indicates that customary practices do, in fact, play a significant role in the commercial world.").
66. See also John H. Schlegel, American Legal Realism and Empirical Social Sciences: From the Yale Experience, 28 BUFF. L. REV. 459, 513-19 (1979). Schlegel describes the reaction of progressive reformers, such as Professor Felix Frankfurter, who "knew" that there was a problem of court congestion. When Charles Clark conducted an empirical study of the business of federal courts that failed to support their preconceptions, they ignored or attacked Clark's work. Schlegel says that for these reformers: "Fact gathering that did not advance an immediate reform objective was scholarship not worth publishing, just as fact gathering that did not fit their model of how the world was structured was an 'irrelevant jumble of figures.'" Evasion and denial of good empirical studies are far too typical of law professors and Supreme Court justices. We cannot brush aside Bernstein's research. While we may object to the inferences that she draws from her findings, any contrary position must be consistent with her data. If we doubt her data, the burden is on us to gather our own and see if it supports our or her views.
67. Bernstein, Questionable Basis, supra note 2, at 715.
68. As Professor Gillette asserts: "Customs may take a sufficiently generalized form that, while each party agrees on the definition of the custom, they disagree on its application to the specific facts of their transaction. But if that is the case, then how much confidence will we have in judicial interpretations of disputed trade usages?" Gillette, supra note 50, at 718.
69. Bernstein's discussion of the imprecise nature of commercial custom reminds me of some of the writing about British colonial rule. The British judges in the colonies left family matters to native customary law. The judges sought to find precise rules or at least something analogous to common law principles. However, the judges gathered native customs by asking hypothetical questions of those adversely affected by changes in family practices brought about by colonial rule. The hypotheticals failed to capture all the qualifications. See MARTIN CHANOCK, LAW, CUSTOM, AND SOCIAL ORDER: THE COLONIAL EXPERIENCE IN MALAWI AND ZAMBIA (1985). Sally Merry reports: One of the major insights garnered by work on law in colonial situations is that the customary law implemented in "native courts" was not a relic of a timeless precolonial past but instead an historical construct of the colonial period. Several careful historical and anthropological studies demonstrate that the so-called "customary law" of the colonial period was forged in particular historical struggles between the colonial power and colonized groups. Francis Synder shows how modernizing elites often took a central role in defining "indigenous law" in the native courts in Senegal. Sally Engel Merry, Anthropology, Law, and Transnational Processes, 21 ANN. REV. ANTHRO. 357 (1992). The point is, of course, that custom frequently doesn't just exist, sitting out there, ready to be picked up and plugged into a legal proceeding. It is often in the process of being created by contending factions.
70. Bernstein's discussion of the imprecise nature of commercial custom reminds me of some of the writing about British colonial rule. The British judges in the colonies left family matters to native customary law. The judges sought to find precise rules or at least something analogous to common law principles. However, the judges gathered native customs by asking hypothetical questions of those adversely affected by changes in family practices brought about by colonial rule. The hypotheticals failed to capture all the qualifications. See MARTIN CHANOCK, LAW, CUSTOM, AND SOCIAL ORDER: THE COLONIAL EXPERIENCE IN MALAWI AND ZAMBIA (1985). Sally Merry reports: One of the major insights garnered by work on law in colonial situations is that the customary law implemented in "native courts" was not a relic of a timeless precolonial past but instead an historical construct of the colonial period. Several careful historical and anthropological studies demonstrate that the so-called "customary law" of the colonial period was forged in particular historical struggles between the colonial power and colonized groups. Francis Synder shows how modernizing elites often took a central role in defining "indigenous law" in the native courts in Senegal. Sally Engel Merry, Anthropology, Law, and Transnational Processes, 21 ANN. REV. ANTHRO. 357 (1992). The point is, of course, that custom frequently doesn't just exist, sitting out there, ready to be picked up and plugged into a legal proceeding. It is often in the process of being created by contending factions.
71. Richard Craswell, Do Trade Customs Exist?, in THE JURISPRUDENTIAL FOUNDATIONS OF CORPORATE AND COMMERClAL LAW (Jody S. Kraus & Steven D. Walt eds., forthcoming 2000) (manuscript at 2, on file with the Northwestern University Law Review).
72. Richard Craswell, Do Trade Customs Exist?, in THE JURISPRUDENTIAL FOUNDATIONS OF CORPORATE AND COMMERClAL LAW (Jody S. Kraus & Steven D. Walt eds., forthcoming 2000) (manuscript at 2, on file with the Northwestern University Law Review).
73. Compare Harris's position: "Rules facilitate, motivate, and organize our behavior; they do not govern or cause it. The causes of behavior are to be found in the material conditions of social life. The conclusion to be drawn from the abundance of 'unless' and 'except' clauses is not that people behave in order to conform to rules, but they select or create rules appropriate for their behavior." MARVIN HARRIS, CULTURAL MATERIALISM: THE STRUGGLE FOR A SCIENCE OF CULTURE 275 (1980).
74. Bernstein, Questionable Basis, supra note 2, at 716.
75. This is not to say that the U.C.C. could not be fine-tuned as it deals with usage and courses of performance and dealing. Moreover, it may be that Article 2's many gap filling provisions that rely on usage and courses of performance and dealing will have much less impact that contracts scholars have assumed.
76. Bernstein writes, "Although the evidence presented here has not conclusively demonstrated that the types of usages of trade and commercial standards, and industry-specific meanings of terms, referenced in the Code do not ever exist, it has suggested that the empirical foundation on which the Code in general, and its incorporation strategy in particular, is built, may be weak." Bernstein, Questionable Basis, supra note 2, at 746.
77. See U.S. Dept. Commerce, Nat'l Inst. of Standards and Technology, Technology Admin., American Softwood Lumber Standard, Voluntary Product Standard PS 20-94, table 3 (1994), where it indicates that a nominal two by four will be 1-1/2 inches by 3-1/2 inches. One can find this document at 〈ts.nist.gov/ts/htdocs/210/215/vps.htm〉. I wish to thank Ms Betty Karweick, Instructional Services Librarian, of the University of Wisconsin Law Library for finding this for me.
78. See Bernstein, Questionable Basis, supra note 2, at 719-25.
79. 159 Eng. Rep. 375 (Ct. of Exchequer 1864).
80. See RESTATEMENT (SECOND) OF CONTRACTS §§ 20, 201 (1981).
81. U.C.C. § 1-205(2) (1995).
82. See Elizabeth Warren, Trade Usage and Parties in the Trade: An Economic Rationale for an Inflexible Rule, 42 U. PITT. L. REV. 515 (1981).
83. Colfax Envelope Corp. v. Local No. 458-3M, 20 F.3d 750 (7th Cir. 1994). See also AM International, Inc. v. Graphic Management Assoc., Inc., 44 F.3d 575 (7th Cir. 1995) (trade usages that terms have unusual meanings is objective evidence and does not violate the purposes of the parol evidence rule as would subjective testimony of a party).
84. Bernstein writes, In the context of the incorporation debates, there are also reasons to be skeptical about strong statements suggesting that local customs exist. If, for example, a transactor is arguing for adoption of a particular rule (especially one that is favorable to his locality rather than simply to a subset of firms in it) he might invoke the alleged universality of the practice in his locality to give his argument legitimacy and persuasive force. Bernstein, Questionable Basis, supra note 2, at 719 n.28. But such skepticism goes to the evidence of the alleged local usage "having such regularity of observance in a place, vocation or trade as to justify an expectation that it will be observed with respect to the transaction in question." U.C.C. §1-205(2). If the practice is only local, and one party does not regularly do business in that locality and the other party knows this, often it would take strong evidence to justify concluding that there was "an expectation that it will be observed with respect to the transaction in question."
85. Under FED. R. EVID. 701, a party may not have to be qualified as an expert but can testify about both his or her experiences and inferences. See Western Industries, Inc. v. Newcor Canada, Ltd., 739 F.2d 1198, 1202 (7th Cir. 1984) ("Newcor's witnesses were experienced executives in the trade and the evidence of the alleged custom was a matter they could infer from their own observations and experience . . . .").
86. Bernstein's concern may be that it is possible to allege a trade usage, offer a deposition by an interested party and thus survive summary judgment. This may put pressure on the one favored by the formal written contract to settle because this will avoid uncertainty and the costs of litigating the claims. See Bernstein, Merchant Law, supra note 3, at 1804-05. Sometimes this is a bad thing. One who owes nothing may have to pay something to escape litigation. Sometimes, however, such a settlement is the best solution to the problem. This often is the case when there are close arguments both ways.
87. See. e.g., Eric Posner, A Theory of Contract Law Under Conditions of Radical Judicial Error, 94 NW. U. L. REV. 749 (2000); Omri Ben-Shahar, The Tentative Case Against Flexibility in Commercial Law, 66 U. CHI. L. REV. 781, 794 (1999) ("Ordinarily, when the promisee faces a situation in which the promisor is trying to perform an obligation in a nonconforming manner, the promisee weighs the value of insisting on strict compliance with the express terms against the cost of such insistence.").
88. See. e.g., Eric Posner, A Theory of Contract Law Under Conditions of Radical Judicial Error, 94 NW. U. L. REV. 749 (2000); Omri Ben-Shahar, The Tentative Case Against Flexibility in Commercial Law, 66 U. CHI. L. REV. 781, 794 (1999) ("Ordinarily, when the promisee faces a situation in which the promisor is trying to perform an obligation in a nonconforming manner, the promisee weighs the value of insisting on strict compliance with the express terms against the cost of such insistence.").
89. See. e.g., Jay Feinman, Promissory Estoppel and Judicial Method, 97 HARV. L. REV. 678, 703 (1984) ("[T]he courts are so distant from the actual contexts of cases that judicial application of the method is properly characterized as interpretive rather than empirical."); Robert Gordon, Comments on R. Danzig, The Capability Problem in Contract Law (1978), reported in LAW IN ACTION, supra note 6, at 111 -13.
90. See. e.g., Jay Feinman, Promissory Estoppel and Judicial Method, 97 HARV. L. REV. 678, 703 (1984) ("[T]he courts are so distant from the actual contexts of cases that judicial application of the method is properly characterized as interpretive rather than empirical."); Robert Gordon, Comments on R. Danzig, The Capability Problem in Contract Law (1978), reported in LAW IN ACTION, supra note 6, at 111 -13.
91. See. e.g., Jay Feinman, Promissory Estoppel and Judicial Method, 97 HARV. L. REV. 678, 703 (1984) ("[T]he courts are so distant from the actual contexts of cases that judicial application of the method is properly characterized as interpretive rather than empirical."); Robert Gordon, Comments on R. Danzig, The Capability Problem in Contract Law (1978), reported in LAW IN ACTION, supra note 6, at 111 -13.
92. It would be interesting to speculate about whether these two movements are allied about anything else. Of course, long before either movement came to general prominence, Richard Danzig raised this question in a supplement to his contracts casebook. See RICHARD DANZIG, THE CAPABILITY PROBLEM IN CONTRACT LAW: FURTHER READINGS ON WELL-KNOWN CASES (1978). See also Richard Danzig, A Comment on the Jurisprudence of the Uniform Commercial Code, 27 STAN. L. REV. 621 (1975).
93. It would be interesting to speculate about whether these two movements are allied about anything else. Of course, long before either movement came to general prominence, Richard Danzig raised this question in a supplement to his contracts casebook. See RICHARD DANZIG, THE CAPABILITY PROBLEM IN CONTRACT LAW: FURTHER READINGS ON WELL-KNOWN CASES (1978). See also Richard Danzig, A Comment on the Jurisprudence of the Uniform Commercial Code, 27 STAN. L. REV. 621 (1975).
94. OXFORD ENGLISH DICTIONARY (CD version 2d ed. 1995). My antique American dictionary says that a "bale" is a "standardized quantity" of goods, but it does not say what that quantity is. WEBSTER'S NEW WORLD DICTIONARY OF THE AMERICAN LANGUAGE 112 (1959). Professor Bernstein's research establishes that there is no reason to rely on any dictionary that does specify a size of a bale.
95. OXFORD ENGLISH DICTIONARY (CD version 2d ed. 1995). My antique American dictionary says that a "bale" is a "standardized quantity" of goods, but it does not say what that quantity is. WEBSTER'S NEW WORLD DICTIONARY OF THE AMERICAN LANGUAGE 112 (1959). Professor Bernstein's research establishes that there is no reason to rely on any dictionary that does specify a size of a bale.
96. See U.CC. § 1-205(3).
97. 664 F.2d 772 (9th Cir. 1982).
98. Cf. Robert Scott, A Relational Theory of Default Rules for Commercial Contracts, 19 J. LEGAL STUD. 597, 615 (1990) ("The parties, in essence, have learned to behave under two sets of rules: a strict set of rules for legal enforcement and a more flexible set of rules for social enforcement."); Victor Goldberg, Impossibility and Related Excuses, 144 J. INSTITUTIONAL AND THEORETICAL ECON. 100 n.3 (1988) (a party may be willing to grant a concession during the performance of a contract but it usually expects at least an implicit quid pro quo in return).
99. Cf. Robert Scott, A Relational Theory of Default Rules for Commercial Contracts, 19 J. LEGAL STUD. 597, 615 (1990) ("The parties, in essence, have learned to behave under two sets of rules: a strict set of rules for legal enforcement and a more flexible set of rules for social enforcement."); Victor Goldberg, Impossibility and Related Excuses, 144 J. INSTITUTIONAL AND THEORETICAL ECON. 100 n.3 (1988) (a party may be willing to grant a concession during the performance of a contract but it usually expects at least an implicit quid pro quo in return).
100. Stanley Holmes, US Airways Says Boeing After Revenge, Not Justice, SEATTLE TIMES, Nov. 30, 1997, at E1; Frederic M. Biddle, US Air Attack's Boeing's Problems with Production in Legal Dispute, WALL ST. J., Nov. 18, 1997, at B10.
101. Stanley Holmes, US Airways Says Boeing After Revenge, Not Justice, SEATTLE TIMES, Nov. 30, 1997, at E1; Frederic M. Biddle, US Air Attack's Boeing's Problems with Production in Legal Dispute, WALL ST. J., Nov. 18, 1997, at B10.
102. The case was settled in April 1998. US Air paid Boeing an undisclosed amount, acknowledged that it had breached the contract, and dropped its countersuit against Boeing. Susan Carey, US Airways is About to Order Airbus A-330s, WALL ST. J., July 2, 1998, at A3. There was speculation in the press about whether Boeing had so poisoned the relationship by refusing a cancellation that US Air would not buy larger aircraft from it in the future. NEWS TRIBUNE (Tacoma, Wa.), July 3, 1998, available in 1998 WL 408965. Of course, with only two available suppliers of large passenger jet aircraft in the world, US Air would benefit from at least the threat of buying Boeing planes in its negotiations with Airbus.
103. The case was settled in April 1998. US Air paid Boeing an undisclosed amount, acknowledged that it had breached the contract, and dropped its countersuit against Boeing. Susan Carey, US Airways is About to Order Airbus A-330s, WALL ST. J., July 2, 1998, at A3. There was speculation in the press about whether Boeing had so poisoned the relationship by refusing a cancellation that US Air would not buy larger aircraft from it in the future. NEWS TRIBUNE (Tacoma, Wa.), July 3, 1998, available in 1998 WL 408965. Of course, with only two available suppliers of large passenger jet aircraft in the world, US Air would benefit from at least the threat of buying Boeing planes in its negotiations with Airbus.
104. See supra text accompanying notes 19-21.
105. 80 532 F.2d 957 (5th Cir. 1976).
106. Id. at 979 n.62.
107. See. e.g., W.H. Barber Co. v. McNamara-Vivant Contracting Co., Inc., 293 N.W.2d 351 (Minn. 1978); Lige Dickson Co. v. Union Oil of California, 96 Wash. 2d 291, 635 P.2d 103 (1981).
108. Bernstein notes that "[b]ecause NGFA [the National Grain and Feed Association] refuses to imply terms that do not appear in written contracts or the trade rules, employees cannot unobservably bind their companies to obligations not contained in their companies' standard-form contracts." See Bernstein, Merchant Law, supra note 3, at 817. Insofar as everyone knows this, reliance on representations and promises not found in formal writings would be unreasonable. However, often this is not the case in other industries.
109. LON L. FULLER, BASIC CONTRACT LAW (1947).
110. Id. at 213. ("The Actual Operation of Harsh' Provisions in Standardized Contracts").
111. Id. at 214.
112. There has long been a reluctance to allow a party to a contract to wiggle out of an obligation through a loophole. When I taught from the Fuller casebook, one of my favorite cases was Liverpool and London and Globe Ins. Co. v. Kearney, 180 U.S. 132 (1901), in which the fire insurance policy at issue contained an "iron-safe clause" that required the insured to keep the books and an inventory in a fireproof safe or in some secure place not exposed to a fire. A fire broke out in a livery stable about three hundred yards from the insured's place of business. The fire spread, and just before the insured's place of business burst into flame, the insured attempted to take the books and inventory from the store to his house. Later, when it was time to make a claim, the inventory could not be produced. It had been left in the safe or was lost in the rush out of the burning building. The insurance company refused to pay because there was no inventory. The insurance company's literal reading of the policy might have served to avoid the burden of having to prove fraud. However, the Supreme Court read the policy as calling only for using prudent care in removing the contents of the safe. "[T]he court does not make for the parties a contract which they did not make for themselves. It only interprets the contract so as to do no violence to the words used and yet to meet the ends of justice." There was no showing that the inventory would have benefited the insurance company in any way and it was unlikely that the nsured's building burned because of arson because the fire started in the stable some 300 yards away.
113. See, e.g., Bead Chain Mfg. Co. v. Saxton Products, Inc., 439 A.2d 314 (Conn. 1981) (The contract may fix a time which is not manifestly unreasonable, but a printed form time-is-of the essence clause cannot extend a buyer's reasonable time to inspect and to reject a tender).
114. Bernstein, Questionable Basis, supra note 2, at 759 n.192.
115. See William C. Whitford, The Functions of Disclosure Regulation in Consumer Contracts, 1973 WIS. L. REV. 400.
116. Id.
117. Bernstein, Questionable Basis, supra note 2, at 775-76.
118. Lane Kenworthy, Stewart Macaulay & Joel Rogers, "The More Things Change . . . ": Business Litigation and Governance in the American Automobile Industry, 21 LAW & SOC. INQUIRY 631, 650 (1996), for example, report that "[i]n June 1992, GM brought in a new supplier management team from its European division, headed by J. Ignacio Lopez. Lopez proceeded to rip up all existing supplier contracts, reopen bidding on contracts already established for the 1993 model year, and demand immediate price reductions of up to 20%."
119. Bernstein, Merchant Law, supra note 3, at 1820-21.
120. 95 Id. n.168.
121. They are not always officials of small companies. See, e.g., Stewart Macaulay, Organic Transactions: Contract, Frank Lloyd Wright and the Johnson Building, 1996 WIS. L. REV. 75 (the contract between Wright and officials of S.C. Johnson & Sons was performed on a relational rather than a legal basis).
122. See Galanter, supra note 47.
123. Professor Whitford argues for clear rules to reduce the costs of consumer protection statutes. See Whitford, supra note 36. But for effective consumer protection, his position requires clear good pro-consumer rules. Clear bad rules would not help consumers much.
124. Professor Bernstein does not say this explicitly. However, I assume that if a court could not look to usage and course of performance and dealing to define and qualify terms and fill gaps, it would follow something such as a four-comers plain-meaning rule as it looked at writings. If she were to accept my point that her empirical findings show only that courts should look carefully at the evidence of custom and courses of performance and dealing, then her work would not necessarily point toward a new formalism. However, at Relational Contract Theory: Unanswered Questions, she did not accept my suggestion that her empirical work went only to questions of evidence.
125. MAX WEBER, ON LAW IN ECONOMY AND SOCIETY 61-64 (Max Rheinstein ed. 1954).
126. David M. Trubek, Max Weber's Tragic Modernism and the Study of Law in Society, 20 LAW & SOC'Y REV. 573, 589-91 (1986). In this essay, Trubek is commenting on Anthony T. Kronman, MAX WEBER (1983). See also David M. Trubek, RECONSTRUCTING MAX WEBER'S SOCIOLOGY OF LAW, 37 STAN. L. REV. 919 (1985). Professor Shamir argues that we have a history of formal rationality leading to internal contradictions. See Ronen Shamir, Formal and Substantive Rationality in American Law: A Weberian Perspective, 2 SOC. & LEG. STUD. 45 (1993). This provokes reform by substantive rationality, but this leads to routinization and demands for more predictable law. A new formalism arises. In time, it too will bend to the irrationality of its rationality, and we get a demand for substantive rationality. After a revolution led by actors such as Karl Llewellyn and Roger Traynor, we have been going through a counter-revolution in the last two decades. Scholars at the University of Wisconsin Law School are considering whether it is time for a "new realism." Professors Sterling and Moore rework Weber's analysis attempt to capture most of the benefits of Weber's formal rationality and substantive rationality. See Joyce S. Sterling & Wilbert E. Moore, Weber's Analysis of Legal Rationalization: A Critique and Constructive Modification, 2 SOCIOLOGICAL F. 67 (1987)
127. David M. Trubek, Max Weber's Tragic Modernism and the Study of Law in Society, 20 LAW & SOC'Y REV. 573, 589-91 (1986). In this essay, Trubek is commenting on Anthony T. Kronman, MAX WEBER (1983). See also David M. Trubek, RECONSTRUCTING MAX WEBER'S SOCIOLOGY OF LAW, 37 STAN. L. REV. 919 (1985). Professor Shamir argues that we have a history of formal rationality leading to internal contradictions. See Ronen Shamir, Formal and Substantive Rationality in American Law: A Weberian Perspective, 2 SOC. & LEG. STUD. 45 (1993). This provokes reform by substantive rationality, but this leads to routinization and demands for more predictable law. A new formalism arises. In time, it too will bend to the irrationality of its rationality, and we get a demand for substantive rationality. After a revolution led by actors such as Karl Llewellyn and Roger Traynor, we have been going through a counter-revolution in the last two decades. Scholars at the University of Wisconsin Law School are considering whether it is time for a "new realism." Professors Sterling and Moore rework Weber's analysis attempt to capture most of the benefits of Weber's formal rationality and substantive rationality. See Joyce S. Sterling & Wilbert E. Moore, Weber's Analysis of Legal Rationalization: A Critique and Constructive Modification, 2 SOCIOLOGICAL F. 67 (1987)
128. David M. Trubek, Max Weber's Tragic Modernism and the Study of Law in Society, 20 LAW & SOC'Y REV. 573, 589-91 (1986). In this essay, Trubek is commenting on Anthony T. Kronman, MAX WEBER (1983). See also David M. Trubek, RECONSTRUCTING MAX WEBER'S SOCIOLOGY OF LAW, 37 STAN. L. REV. 919 (1985). Professor Shamir argues that we have a history of formal rationality leading to internal contradictions. See Ronen Shamir, Formal and Substantive Rationality in American Law: A Weberian Perspective, 2 SOC. & LEG. STUD. 45 (1993). This provokes reform by substantive rationality, but this leads to routinization and demands for more predictable law. A new formalism arises. In time, it too will bend to the irrationality of its rationality, and we get a demand for substantive rationality. After a revolution led by actors such as Karl Llewellyn and Roger Traynor, we have been going through a counter-revolution in the last two decades. Scholars at the University of Wisconsin Law School are considering whether it is time for a "new realism." Professors Sterling and Moore rework Weber's analysis attempt to capture most of the benefits of Weber's formal rationality and substantive rationality. See Joyce S. Sterling & Wilbert E. Moore, Weber's Analysis of Legal Rationalization: A Critique and Constructive Modification, 2 SOCIOLOGICAL F. 67 (1987)
129. David M. Trubek, Max Weber's Tragic Modernism and the Study of Law in Society, 20 LAW & SOC'Y REV. 573, 589-91 (1986). In this essay, Trubek is commenting on Anthony T. Kronman, MAX WEBER (1983). See also David M. Trubek, RECONSTRUCTING MAX WEBER'S SOCIOLOGY OF LAW, 37 STAN. L. REV. 919 (1985). Professor Shamir argues that we have a history of formal rationality leading to internal contradictions. See Ronen Shamir, Formal and Substantive Rationality in American Law: A Weberian Perspective, 2 SOC. & LEG. STUD. 45 (1993). This provokes reform by substantive rationality, but this leads to routinization and demands for more predictable law. A new formalism arises. In time, it too will bend to the irrationality of its rationality, and we get a demand for substantive rationality. After a revolution led by actors such as Karl Llewellyn and Roger Traynor, we have been going through a counter-revolution in the last two decades. Scholars at the University of Wisconsin Law School are considering whether it is time for a "new realism." Professors Sterling and Moore rework Weber's analysis attempt to capture most of the benefits of Weber's formal rationality and substantive rationality. See Joyce S. Sterling & Wilbert E. Moore, Weber's Analysis of Legal Rationalization: A Critique and Constructive Modification, 2 SOCIOLOGICAL F. 67 (1987)
130. David M. Trubek, Max Weber's Tragic Modernism and the Study of Law in Society, 20 LAW & SOC'Y REV. 573, 589-91 (1986). In this essay, Trubek is commenting on Anthony T. Kronman, MAX WEBER (1983). See also David M. Trubek, RECONSTRUCTING MAX WEBER'S SOCIOLOGY OF LAW, 37 STAN. L. REV. 919 (1985). Professor Shamir argues that we have a history of formal rationality leading to internal contradictions. See Ronen Shamir, Formal and Substantive Rationality in American Law: A Weberian Perspective, 2 SOC. & LEG. STUD. 45 (1993). This provokes reform by substantive rationality, but this leads to routinization and demands for more predictable law. A new formalism arises. In time, it too will bend to the irrationality of its rationality, and we get a demand for substantive rationality. After a revolution led by actors such as Karl Llewellyn and Roger Traynor, we have been going through a counter-revolution in the last two decades. Scholars at the University of Wisconsin Law School are considering whether it is time for a "new realism." Professors Sterling and Moore rework Weber's analysis attempt to capture most of the benefits of Weber's formal rationality and substantive rationality. See Joyce S. Sterling & Wilbert E. Moore, Weber's Analysis of Legal Rationalization: A Critique and Constructive Modification, 2 SOCIOLOGICAL F. 67 (1987)
131. David M. Trubek, Max Weber's Tragic Modernism and the Study of Law in Society, 20 LAW & SOC'Y REV. 573, 589-91 (1986). In this essay, Trubek is commenting on Anthony T. Kronman, MAX WEBER (1983). See also David M. Trubek, RECONSTRUCTING MAX WEBER'S SOCIOLOGY OF LAW, 37 STAN. L. REV. 919 (1985). Professor Shamir argues that we have a history of formal rationality leading to internal contradictions. See Ronen Shamir, Formal and Substantive Rationality in American Law: A Weberian Perspective, 2 SOC. & LEG. STUD. 45 (1993). This provokes reform by substantive rationality, but this leads to routinization and demands for more predictable law. A new formalism arises. In time, it too will bend to the irrationality of its rationality, and we get a demand for substantive rationality. After a revolution led by actors such as Karl Llewellyn and Roger Traynor, we have been going through a counter-revolution in the last two decades. Scholars at the University of Wisconsin Law School are considering whether it is time for a "new realism." Professors Sterling and Moore rework Weber's analysis attempt to capture most of the benefits of Weber's formal rationality and substantive rationality. See Joyce S. Sterling & Wilbert E. Moore, Weber's Analysis of Legal Rationalization: A Critique and Constructive Modification, 2 SOCIOLOGICAL F. 67 (1987)
132. Lawrence M. Friedman, On Legalistic Reasoning: A Footnote to Weber, 1966 WIS. L. REV 148, 171.
133. See Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685, 1737 (1976).
134. Professors Kaufmann and Stem find empirical support for Macneil's norms of solidarity and role integrity in long-term relationships. See Patrick J. Kaufmann & Louis W. Stem, Relational Exchange Norms, Perceptions of Unfairness, and Retained Hostility in Commercial Litigation, 32 J. CONFLICT RESOL. 534 (1988).
135. I am still enough of a legal realist to be very skeptical whether our system of contract law could abandon doctrines such as promissory estoppel, waiver, substantial performance and the use of extrinsic evidence to resolve "ambiguity" in a writing. Even if it could, the problem of the facts would remain. Jurors can find against the weight of the evidence to reach a result. Appellate courts can ignore the record or just make up facts to make a court come out the right way. My guess is that the second is more common than the first.
136. IAN R. MACNEIL, THE NEW SOCIAL CONTRACT 103 (1980).
137. Cf. Kathryn Hendley et al., Observations on the Use of Law by Russian Enterprises, 13 POST-SOVIET AFFAIRS 19 (1997); Kathryn Hendley, Legal Development in Post-Soviet Russia, 13 POST-SOVIET AFFAIRS 228 (1997). Hendley's work usually is read by specialists in Russia or comparative law. However, her work speaks importantly to the role of contract law in a market economy, and contracts scholars should not overlook it because they are unfamiliar with the journals in which it appears.
138. Cf. Kathryn Hendley et al., Observations on the Use of Law by Russian Enterprises, 13 POST-SOVIET AFFAIRS 19 (1997); Kathryn Hendley, Legal Development in Post-Soviet Russia, 13 POST-SOVIET AFFAIRS 228 (1997). Hendley's work usually is read by specialists in Russia or comparative law. However, her work speaks importantly to the role of contract law in a market economy, and contracts scholars should not overlook it because they are unfamiliar with the journals in which it appears.