Contract reconceived

Northwestern University Law Review

Volumn 96, Issue 1, 2001, Pages 39-96

  Alces, Peter A ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0347607089     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (263)

1. JOHN RAY, Preface to METHODUS PLANTARUM (1682).
2. Understand that the Contract "science" posited here is not a reprise of the "science" of the Nineteenth-century formalists, whose scientific aspirations . . . were based on the idea that legal principles were 'out there,' beyond the reach of conscious decision-makers in the same sense as the principles of natural science. [T]he formalist believed that the task of legal scholarship was to describe those principles, and then construct prescriptions that would be fully dependent on them. Edward L. Rubin, Law and the Methodology of Law, 1997 WIS. L. REV. 521, 525. The argument advanced here does not hold out hope for an immanent law awaiting discovery. Instead, the argument of this article is for reconception of the elements of Contract in a manner that would facilitate focus on the elements' interrelation in order to provide a means to appreciate degrees of promise enforcement rationalized in terms of the extent of the damages awardable. For discussions of the formalistic legal "science," see Thomas Grey, Langdell's Orthodoxy, 45 U. PITT. L. REV. 1 (1983) and Dennis Patterson, Langdell's Legacy, 90 NW. U. L. REV. 196 (1995).
3. Understand that the Contract "science" posited here is not a reprise of the "science" of the Nineteenth-century formalists, whose scientific aspirations . . . were based on the idea that legal principles were 'out there,' beyond the reach of conscious decision-makers in the same sense as the principles of natural science. [T]he formalist believed that the task of legal scholarship was to describe those principles, and then construct prescriptions that would be fully dependent on them. Edward L. Rubin, Law and the Methodology of Law, 1997 WIS. L. REV. 521, 525. The argument advanced here does not hold out hope for an immanent law awaiting discovery. Instead, the argument of this article is for reconception of the elements of Contract in a manner that would facilitate focus on the elements' interrelation in order to provide a means to appreciate degrees of promise enforcement rationalized in terms of the extent of the damages awardable. For discussions of the formalistic legal "science," see Thomas Grey, Langdell's Orthodoxy, 45 U. PITT. L. REV. 1 (1983) and Dennis Patterson, Langdell's Legacy, 90 NW. U. L. REV. 196 (1995).
4. Understand that the Contract "science" posited here is not a reprise of the "science" of the Nineteenth-century formalists, whose scientific aspirations . . . were based on the idea that legal principles were 'out there,' beyond the reach of conscious decision-makers in the same sense as the principles of natural science. [T]he formalist believed that the task of legal scholarship was to describe those principles, and then construct prescriptions that would be fully dependent on them. Edward L. Rubin, Law and the Methodology of Law, 1997 WIS. L. REV. 521, 525. The argument advanced here does not hold out hope for an immanent law awaiting discovery. Instead, the argument of this article is for reconception of the elements of Contract in a manner that would facilitate focus on the elements' interrelation in order to provide a means to appreciate degrees of promise enforcement rationalized in terms of the extent of the damages awardable. For discussions of the formalistic legal "science," see Thomas Grey, Langdell's Orthodoxy, 45 U. PITT. L. REV. 1 (1983) and Dennis Patterson, Langdell's Legacy, 90 NW. U. L. REV. 196 (1995).
5. The vocabulary includes, for example, consideration, offer, acceptance, agreement, capacity, and bargain. These terms are only intended as exemplars of the rational units that have currency in the Contract law. They recur throughout this paper as representatives of the analytical tools that they signify, not as the sum and substance of Contract.
6. Goetz and Scott acknowledged at the outset of their inquiry into the basis of Contract that "common law 'bargain theory' is classically simple: bargained-for promises are presumptively enforceable; nonreciprocal promises are presumptively unenforceable. But this disarmingly simple theory has never mirrored reality." Charles J. Goetz & Robert E. Scott, Enforcing Promises: An Examination of the Basis of Contract, 89 YALE L.J. 1261, 1261-62 (1980).
7. PAUL HOYNINGEN-HUENE, RECONSTRUCTING SCIENTIFIC REVOLUTIONS: THOMAS S. KUHN'S PHILOSOPHY OF SCIENCE 23 (Alexander J. Levine trans., Univ. of Chicago Press 1993) (1989). Edward Wilson has also offered conceptions of science: Science is neither a philosophy nor a belief system. It is a combination of mental operations that has become increasingly the habit of educated peoples, a culture of illuminations hit upon by a fortunate turn of history that yielded the most effective way of learning about the real world ever conceived. EDWARD O. WILSON, CONSILIENCE 45 (1998). "[S]cience to put its warrant as concisely as possible, is the organized, systematic enterprise that gathers knowledge about the world and condenses the knowledge into testable laws and principles." Id. at 53 (emphasis added).
8. PAUL HOYNINGEN-HUENE, RECONSTRUCTING SCIENTIFIC REVOLUTIONS: THOMAS S. KUHN'S PHILOSOPHY OF SCIENCE 23 (Alexander J. Levine trans., Univ. of Chicago Press 1993) (1989). Edward Wilson has also offered conceptions of science: Science is neither a philosophy nor a belief system. It is a combination of mental operations that has become increasingly the habit of educated peoples, a culture of illuminations hit upon by a fortunate turn of history that yielded the most effective way of learning about the real world ever conceived. EDWARD O. WILSON, CONSILIENCE 45 (1998). "[S]cience to put its warrant as concisely as possible, is the organized, systematic enterprise that gathers knowledge about the world and condenses the knowledge into testable laws and principles." Id. at 53 (emphasis added).
9. It might likewise be worthwhile to replace the word "nature" with the term "human nature." What remains, though, is to circumscribe the scope of Contract, to determine where Contract ends and some other legal category, perhaps Tort, begins. That distinction is substantial only if there is a fixed or even fixable distinction between the law of consensual and nonconsensual relations. The formulation of that distinction presents a formidable challenge, and one without the scope of this study. For present purposes, to appreciate the parallel between theories of science and theories of Contract, it suffices to recognize that the word "world" in the Hoyningen-Huene excerpt does not undermine the Contract as science proposition. Instead, it saves the same place in science as the term "consensual exchange relations" might in Contract theory. Similarly, we could conclude that copyright, and perhaps all of intellectual property law, is a Contract system insofar as it orders consensual exchanges of value. While we can say that rules governing consensual exchanges are the stuff of Contract, it is not necessary (indeed, it may be erroneous) to conclude that Contract governs only consensual relations. Consent has become (perhaps never was more than) a label for a point on a continuum at which a court for reasons related in part to the fact-finder's perception of the promisor's state of mind would enforce the promise. It is at best a conclusion, not a particularly worthwhile analytical tool. So it might not shock the conscience of too many to enforce "promises" that are not the product of consent in the colloquial sense.
10. HOYNINGEN-HUENE, supra note 5, at 23.
11. The inquiry might be further expanded to take into account the role of the judicial process in the enforcement of contracts. That would focus the inquiry on theories of adjudication in Contract and, here, is subsumed in a general inquiry into the science of Contract. Courts provide one setting in which promises are enforced, but they are neither the exclusive nor even, perhaps, the dominant fora. For a comprehensive, and particularly insightful, appreciation of the extra-judicial determinants on contract enforceability see HUGH COLLINS, REGULATING CONTRACTS (1999). Robert Hillman's review of Collins monograph places the work within the relational contract canon but ultimately fails to appreciate Collins's contribution. See Robert A. Hillman, Regulating Contracts by Hugh Collins, 27 J.L. SOC'Y 338 (2000) (book review). Ian Macneil has written several important articles positing relational contract theory, including Relational Contract: What We Do and Do Not Know, 1985 WIS. L. REV. 483; Contracts: Adjustment of Long-Term Economic Relations Under Classical, Neoclassical and Relational Contract Law, 72 NW. U. L. REV. 854 (1978); and The Many Futures of Contract, 47 S. CAL. L. REV. 691 (1974). Criticisms of the relational perspective include MICHAEL J. TREBILCOCK, THE LIMITS OF FREEDOM OF CONTRACT 141 (1993); Randy E. Barnett, Conflicting Visions: A Critique of Ian Macneil's Relational Theory of Contract, 78 VA. L. REV. 1175 (1992). All of these commentaries are cited by Hillman, supra, at 343 nn. 18-22.
12. The inquiry might be further expanded to take into account the role of the judicial process in the enforcement of contracts. That would focus the inquiry on theories of adjudication in Contract and, here, is subsumed in a general inquiry into the science of Contract. Courts provide one setting in which promises are enforced, but they are neither the exclusive nor even, perhaps, the dominant fora. For a comprehensive, and particularly insightful, appreciation of the extra-judicial determinants on contract enforceability see HUGH COLLINS, REGULATING CONTRACTS (1999). Robert Hillman's review of Collins monograph places the work within the relational contract canon but ultimately fails to appreciate Collins's contribution. See Robert A. Hillman, Regulating Contracts by Hugh Collins, 27 J.L. SOC'Y 338 (2000) (book review). Ian Macneil has written several important articles positing relational contract theory, including Relational Contract: What We Do and Do Not Know, 1985 WIS. L. REV. 483; Contracts: Adjustment of Long-Term Economic Relations Under Classical, Neoclassical and Relational Contract Law, 72 NW. U. L. REV. 854 (1978); and The Many Futures of Contract, 47 S. CAL. L. REV. 691 (1974). Criticisms of the relational perspective include MICHAEL J. TREBILCOCK, THE LIMITS OF FREEDOM OF CONTRACT 141 (1993); Randy E. Barnett, Conflicting Visions: A Critique of Ian Macneil's Relational Theory of Contract, 78 VA. L. REV. 1175 (1992). All of these commentaries are cited by Hillman, supra, at 343 nn. 18-22.
13. The inquiry might be further expanded to take into account the role of the judicial process in the enforcement of contracts. That would focus the inquiry on theories of adjudication in Contract and, here, is subsumed in a general inquiry into the science of Contract. Courts provide one setting in which promises are enforced, but they are neither the exclusive nor even, perhaps, the dominant fora. For a comprehensive, and particularly insightful, appreciation of the extra-judicial determinants on contract enforceability see HUGH COLLINS, REGULATING CONTRACTS (1999). Robert Hillman's review of Collins monograph places the work within the relational contract canon but ultimately fails to appreciate Collins's contribution. See Robert A. Hillman, Regulating Contracts by Hugh Collins, 27 J.L. SOC'Y 338 (2000) (book review). Ian Macneil has written several important articles positing relational contract theory, including Relational Contract: What We Do and Do Not Know, 1985 WIS. L. REV. 483; Contracts: Adjustment of Long-Term Economic Relations Under Classical, Neoclassical and Relational Contract Law, 72 NW. U. L. REV. 854 (1978); and The Many Futures of Contract, 47 S. CAL. L. REV. 691 (1974). Criticisms of the relational perspective include MICHAEL J. TREBILCOCK, THE LIMITS OF FREEDOM OF CONTRACT 141 (1993); Randy E. Barnett, Conflicting Visions: A Critique of Ian Macneil's Relational Theory of Contract, 78 VA. L. REV. 1175 (1992). All of these commentaries are cited by Hillman, supra, at 343 nn. 18-22.
14. The inquiry might be further expanded to take into account the role of the judicial process in the enforcement of contracts. That would focus the inquiry on theories of adjudication in Contract and, here, is subsumed in a general inquiry into the science of Contract. Courts provide one setting in which promises are enforced, but they are neither the exclusive nor even, perhaps, the dominant fora. For a comprehensive, and particularly insightful, appreciation of the extra-judicial determinants on contract enforceability see HUGH COLLINS, REGULATING CONTRACTS (1999). Robert Hillman's review of Collins monograph places the work within the relational contract canon but ultimately fails to appreciate Collins's contribution. See Robert A. Hillman, Regulating Contracts by Hugh Collins, 27 J.L. SOC'Y 338 (2000) (book review). Ian Macneil has written several important articles positing relational contract theory, including Relational Contract: What We Do and Do Not Know, 1985 WIS. L. REV. 483; Contracts: Adjustment of Long-Term Economic Relations Under Classical, Neoclassical and Relational Contract Law, 72 NW. U. L. REV. 854 (1978); and The Many Futures of Contract, 47 S. CAL. L. REV. 691 (1974). Criticisms of the relational perspective include MICHAEL J. TREBILCOCK, THE LIMITS OF FREEDOM OF CONTRACT 141 (1993); Randy E. Barnett, Conflicting Visions: A Critique of Ian Macneil's Relational Theory of Contract, 78 VA. L. REV. 1175 (1992). All of these commentaries are cited by Hillman, supra, at 343 nn. 18-22.
15. The inquiry might be further expanded to take into account the role of the judicial process in the enforcement of contracts. That would focus the inquiry on theories of adjudication in Contract and, here, is subsumed in a general inquiry into the science of Contract. Courts provide one setting in which promises are enforced, but they are neither the exclusive nor even, perhaps, the dominant fora. For a comprehensive, and particularly insightful, appreciation of the extra-judicial determinants on contract enforceability see HUGH COLLINS, REGULATING CONTRACTS (1999). Robert Hillman's review of Collins monograph places the work within the relational contract canon but ultimately fails to appreciate Collins's contribution. See Robert A. Hillman, Regulating Contracts by Hugh Collins, 27 J.L. SOC'Y 338 (2000) (book review). Ian Macneil has written several important articles positing relational contract theory, including Relational Contract: What We Do and Do Not Know, 1985 WIS. L. REV. 483; Contracts: Adjustment of Long-Term Economic Relations Under Classical, Neoclassical and Relational Contract Law, 72 NW. U. L. REV. 854 (1978); and The Many Futures of Contract, 47 S. CAL. L. REV. 691 (1974). Criticisms of the relational perspective include MICHAEL J. TREBILCOCK, THE LIMITS OF FREEDOM OF CONTRACT 141 (1993); Randy E. Barnett, Conflicting Visions: A Critique of Ian Macneil's Relational Theory of Contract, 78 VA. L. REV. 1175 (1992). All of these commentaries are cited by Hillman, supra, at 343 nn. 18-22.
16. The inquiry might be further expanded to take into account the role of the judicial process in the enforcement of contracts. That would focus the inquiry on theories of adjudication in Contract and, here, is subsumed in a general inquiry into the science of Contract. Courts provide one setting in which promises are enforced, but they are neither the exclusive nor even, perhaps, the dominant fora. For a comprehensive, and particularly insightful, appreciation of the extra-judicial determinants on contract enforceability see HUGH COLLINS, REGULATING CONTRACTS (1999). Robert Hillman's review of Collins monograph places the work within the relational contract canon but ultimately fails to appreciate Collins's contribution. See Robert A. Hillman, Regulating Contracts by Hugh Collins, 27 J.L. SOC'Y 338 (2000) (book review). Ian Macneil has written several important articles positing relational contract theory, including Relational Contract: What We Do and Do Not Know, 1985 WIS. L. REV. 483; Contracts: Adjustment of Long-Term Economic Relations Under Classical, Neoclassical and Relational Contract Law, 72 NW. U. L. REV. 854 (1978); and The Many Futures of Contract, 47 S. CAL. L. REV. 691 (1974). Criticisms of the relational perspective include MICHAEL J. TREBILCOCK, THE LIMITS OF FREEDOM OF CONTRACT 141 (1993); Randy E. Barnett, Conflicting Visions: A Critique of Ian Macneil's Relational Theory of Contract, 78 VA. L. REV. 1175 (1992). All of these commentaries are cited by Hillman, supra, at 343 nn. 18-22.
17. The inquiry might be further expanded to take into account the role of the judicial process in the enforcement of contracts. That would focus the inquiry on theories of adjudication in Contract and, here, is subsumed in a general inquiry into the science of Contract. Courts provide one setting in which promises are enforced, but they are neither the exclusive nor even, perhaps, the dominant fora. For a comprehensive, and particularly insightful, appreciation of the extra-judicial determinants on contract enforceability see HUGH COLLINS, REGULATING CONTRACTS (1999). Robert Hillman's review of Collins monograph places the work within the relational contract canon but ultimately fails to appreciate Collins's contribution. See Robert A. Hillman, Regulating Contracts by Hugh Collins, 27 J.L. SOC'Y 338 (2000) (book review). Ian Macneil has written several important articles positing relational contract theory, including Relational Contract: What We Do and Do Not Know, 1985 WIS. L. REV. 483; Contracts: Adjustment of Long-Term Economic Relations Under Classical, Neoclassical and Relational Contract Law, 72 NW. U. L. REV. 854 (1978); and The Many Futures of Contract, 47 S. CAL. L. REV. 691 (1974). Criticisms of the relational perspective include MICHAEL J. TREBILCOCK, THE LIMITS OF FREEDOM OF CONTRACT 141 (1993); Randy E. Barnett, Conflicting Visions: A Critique of Ian Macneil's Relational Theory of Contract, 78 VA. L. REV. 1175 (1992). All of these commentaries are cited by Hillman, supra, at 343 nn. 18-22.
18. E. Allan Farnsworth, the Reporter for the Restatement (Second) of Contracts, has explained: Attempts at justifying the statute of frauds in this country stress the functions of a formality such as a writing. Its original purpose was evidentiary, providing some proof that the alleged agreement was actually made and all its provisions perform this function to some degree. A few provisions perform other functions as well. The suretyship provision performs an important cautionary function, by bringing home to the promisor the significance of the promise and preventing illconsidered and impulsive promises. The land contract provision performs a significant channeling function, by furnishing a simple test of enforceability to mark off unenforceable agreements from enforceable ones. It is noteworthy that the most durable and well-regarded of the statute's provisions are those that fulfill more than just the original evidentiary purpose. E. ALLAN FARNSWORTH, CONTRACTS 366 (3d ed. 1999).
19. E. Allan Farnsworth, the Reporter for the Restatement (Second) of Contracts, has explained: Attempts at justifying the statute of frauds in this country stress the functions of a formality such as a writing. Its original purpose was evidentiary, providing some proof that the alleged agreement was actually made and all its provisions perform this function to some degree. A few provisions perform other functions as well. The suretyship provision performs an important cautionary function, by bringing home to the promisor the significance of the promise and preventing illconsidered and impulsive promises. The land contract provision performs a significant channeling function, by furnishing a simple test of enforceability to mark off unenforceable agreements from enforceable ones. It is noteworthy that the most durable and well-regarded of the statute's provisions are those that fulfill more than just the original evidentiary purpose. E. ALLAN FARNSWORTH, CONTRACTS 366 (3d ed. 1999).
20. Farnsworth developed (or at least, described) the contours of a so-called intention principle in his CHANGING YOUR MIND: THE LAW OF REGRETTED DECISIONS 38 (1998) ("[T]he intention to be legally bound is a basis for commitment."). Professor Farnsworth did not describe intent as the exclusive basis to support commitment; he also found room for the operation of a reliance principle: "'No one can change his mind to someone else's disadvantage.'" Id. at 2 (quoting Papinian, in 4 THE DIGEST OF JUSTINIAN 50.17.75 (Theodore Mommsen & Alan Watson trans., 1985)).
21. Farnsworth developed (or at least, described) the contours of a so-called intention principle in his CHANGING YOUR MIND: THE LAW OF REGRETTED DECISIONS 38 (1998) ("[T]he intention to be legally bound is a basis for commitment."). Professor Farnsworth did not describe intent as the exclusive basis to support commitment; he also found room for the operation of a reliance principle: "'No one can change his mind to someone else's disadvantage.'" Id. at 2 (quoting Papinian, in 4 THE DIGEST OF JUSTINIAN 50.17.75 (Theodore Mommsen & Alan Watson trans., 1985)).
22. Randy Barnett, for example, has suggested that a consent theory supports Contract, but at the level of values rather than principles. See Randy E. Barnett, A Consent Theory of Contract, 86 COLUM. L. REV. 269 (1986). Craswell effectively revealed the deficiencies of Barnett's analysis and conclusion. See Richard Craswell, Contract Law, Default Rules, and the Philosophy of Promising, 88 MICH. L. REV. 489, 523-28 (1989 ). But the point here is not that consent, however construed, explains all of Contract; it is only to suggest the relationship between values and principles and among values, principles, and rules. The parameters of that trichotomy are considered in Peter A. Alces, Regret and Contract "Science," 89 GEO. L.J. 143 (2000). Indeed, it is not even necessary, for the purpose of demonstrating Contract as science, to establish certainly the existence of values that generally animate principles that, in turn, animate Contract rules. Jurisprudential analyses of Contract that do not identify viable fundamental values, are even skeptical that there are such jurisprudential units in Contract theory, would still support a Contract as science model. Farnsworth and Craswell each proceed from perspectives not informed by a unitary fundamental value, or at least have noted their inability to identify that value in terms that would advance Contract theory: "My own belief is that no single explanation will suffice and that the answer is a complex mix of explanations that focus on both promisor and promisee. The instances in which promises should be enforced are too varied to be shoehorned into the confines of a single rationale." FARNSWORTH, supra note 10, at 37. Craswell writes, Thus, ethical theories about what kind of promises to make usually derive from theories about the particular subject matter of the promise (helping the poor, etc). They do not derive from theories about promising as such. The same could be true . . . concerning the ethical consequences of having made a promise. That is, there would be nothing illogical in believing that the conditions under which it is excusable to break a promise to the poor have no connection (in the sense of being linked by any common theory) with the conditions under which it is excusable to break a business promise or a promise to a friend. If that were the case, there would be no point in asking questions about the nature of the commitment represented by promises in general. One could speak of the commitment represented by charitable promises, or business promises, but it would be useless to search for any general, unifying theory of promises. Craswell, supra, at 492.
23. Randy Barnett, for example, has suggested that a consent theory supports Contract, but at the level of values rather than principles. See Randy E. Barnett, A Consent Theory of Contract, 86 COLUM. L. REV. 269 (1986). Craswell effectively revealed the deficiencies of Barnett's analysis and conclusion. See Richard Craswell, Contract Law, Default Rules, and the Philosophy of Promising, 88 MICH. L. REV. 489, 523-28 (1989 ). But the point here is not that consent, however construed, explains all of Contract; it is only to suggest the relationship between values and principles and among values, principles, and rules. The parameters of that trichotomy are considered in Peter A. Alces, Regret and Contract "Science," 89 GEO. L.J. 143 (2000). Indeed, it is not even necessary, for the purpose of demonstrating Contract as science, to establish certainly the existence of values that generally animate principles that, in turn, animate Contract rules. Jurisprudential analyses of Contract that do not identify viable fundamental values, are even skeptical that there are such jurisprudential units in Contract theory, would still support a Contract as science model. Farnsworth and Craswell each proceed from perspectives not informed by a unitary fundamental value, or at least have noted their inability to identify that value in terms that would advance Contract theory: "My own belief is that no single explanation will suffice and that the answer is a complex mix of explanations that focus on both promisor and promisee. The instances in which promises should be enforced are too varied to be shoehorned into the confines of a single rationale." FARNSWORTH, supra note 10, at 37. Craswell writes, Thus, ethical theories about what kind of promises to make usually derive from theories about the particular subject matter of the promise (helping the poor, etc). They do not derive from theories about promising as such. The same could be true . . . concerning the ethical consequences of having made a promise. That is, there would be nothing illogical in believing that the conditions under which it is excusable to break a promise to the poor have no connection (in the sense of being linked by any common theory) with the conditions under which it is excusable to break a business promise or a promise to a friend. If that were the case, there would be no point in asking questions about the nature of the commitment represented by promises in general. One could speak of the commitment represented by charitable promises, or business promises, but it would be useless to search for any general, unifying theory of promises. Craswell, supra, at 492.
24. Randy Barnett, for example, has suggested that a consent theory supports Contract, but at the level of values rather than principles. See Randy E. Barnett, A Consent Theory of Contract, 86 COLUM. L. REV. 269 (1986). Craswell effectively revealed the deficiencies of Barnett's analysis and conclusion. See Richard Craswell, Contract Law, Default Rules, and the Philosophy of Promising, 88 MICH. L. REV. 489, 523-28 (1989 ). But the point here is not that consent, however construed, explains all of Contract; it is only to suggest the relationship between values and principles and among values, principles, and rules. The parameters of that trichotomy are considered in Peter A. Alces, Regret and Contract "Science," 89 GEO. L.J. 143 (2000). Indeed, it is not even necessary, for the purpose of demonstrating Contract as science, to establish certainly the existence of values that generally animate principles that, in turn, animate Contract rules. Jurisprudential analyses of Contract that do not identify viable fundamental values, are even skeptical that there are such jurisprudential units in Contract theory, would still support a Contract as science model. Farnsworth and Craswell each proceed from perspectives not informed by a unitary fundamental value, or at least have noted their inability to identify that value in terms that would advance Contract theory: "My own belief is that no single explanation will suffice and that the answer is a complex mix of explanations that focus on both promisor and promisee. The instances in which promises should be enforced are too varied to be shoehorned into the confines of a single rationale." FARNSWORTH, supra note 10, at 37. Craswell writes, Thus, ethical theories about what kind of promises to make usually derive from theories about the particular subject matter of the promise (helping the poor, etc). They do not derive from theories about promising as such. The same could be true . . . concerning the ethical consequences of having made a promise. That is, there would be nothing illogical in believing that the conditions under which it is excusable to break a promise to the poor have no connection (in the sense of being linked by any common theory) with the conditions under which it is excusable to break a business promise or a promise to a friend. If that were the case, there would be no point in asking questions about the nature of the commitment represented by promises in general. One could speak of the commitment represented by charitable promises, or business promises, but it would be useless to search for any general, unifying theory of promises. Craswell, supra, at 492.
25. See CHARLES FRIED, CONTRACT AS PROMISE: A THEORY OF CONTRACTUAL OBLIGATION (1981) (arguing that conceptions of individual autonomy are fundamental to contract liability).
26. HOYNINGEN-HUENE, supra note 5, at 23.
27. Id.
28. Compare Fireman's Fund Am. Ins. Co. v. Burns Elec. Sec. Sys., Inc., 417 N.E.2d 131 (Ill. App. Ct. 1981) (enforcing liability limitation in alarm system contract), and Schutkowski v. Corey, 725 P.2d 1057 (Wyo. 1986) (enforcing liability limitation against skydiver), with Klar v. H&M Parcel Room, Inc., 61 N.Y.S.2d 285 (N.Y. App. Div. 1946), aff'd mem., 73 N.E.2d 912 (N.Y. 1947) (refusing to enforce limitation of liability on back of parcel receipt), and Parton v. Mark Pirtle Oldsmobile-Cadillac-Isuzu, Inc., 730 S.W.2d 634 (Tenn. Ct. App. 1987) (refusing to enforce signed exculpation agreement upon theft of car from dealer's premises).
29. For one view of the role of dispute resolution, see K.N. LLEWELLYN & E. ADAMSON HOEBEL, THE CHEYENNE WAY: CONFLICT AND CASE LAW IN PRIMITIVE JURISPRUDENCE (1941): Cases (enough of them) do make an intractable body of behavior, to be seen and to be recorded, whether it 'fits' or not. It is our experience, further, that patterns, attitudes, and strains which are peculiar in the culture make themselves felt rather rapidly in the trouble-cases. The felt strains and stresses then give leads for inquiry not foreshadowed in the anticipatory plan. Id. at 40.
30. HOYNINGEN-HUENE, supra note 5, at 23.
31. Cf. L.L. Fuller & William R. Perdue, Jr., The Reliance Interest in Contract Damages: 1, 46 YALE L.J. 52 (1936). In the assessment of damages the law tends to be conceived, not as a purposive ordering of human affairs, but as a kind of juristic mensuration. The language of the decisions sounds in terms not of command but discovery. We measure the extent of the injury; we determine whether it was caused by the defendant's act; we ascertain whether the plaintiff has included the same item of damage twice in his complaint. Id. at 52.
32. Of course, the word "contract" too invokes certain intellectual and even emotional responses. To say that one party has a contract with another is to say that some performance is due, and that may be a normative judgment as well. Indeed, the science of Contract may be no more than the study of when some performance is due by reference to a package of expectations arising from communication. The "justness" of the expectations will be no less in issue than the form and substance of the communication and, in fact, may be inextricably intertwined with the mechanics of the communications.
33. RESTATEMENT (SECOND) OF CONTRACTS § 1 (1981) ("A contract is a promise or set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.").
34. Id. § 2(1) ("A promise is a manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made.").
35. Id. § 3 ("An agreement is a manifestation of mutual assent on the part of two or more persons.").
36. See id. § 3 cmt. d ("A bargain is ordinarily made by an offer by one party and an acceptance by the other party or parties, the offer specifying the two subjects of exchange to which the offerer is manifesting assent.").
37. Id. § 24 ("An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.").
38. Id. § 50(1) ("Acceptance of an offer is a manifestation of assent to the terms thereof made by the offeree in a manner invited or required by the offer.").
39. Id. § 17(1) ("[T]he formation of a contract requires a bargain in which there is manifestation of mutual assent to the exchange and a consideration.").
40. Id. § 71(1) ("To constitute consideration, a performance or a return promise must be bargained for.").
41. Cf. Daniel A. Farber & John H. Matheson, Beyond Promissory Estoppel: Contract Law and the "Invisible Handshake," 52 U. CHI. L. REV. 903, 914 (1985) ("The requirement of a promise makes liability turn on the voluntary assumption of a duty.").
42. For a definition and description of the Leontif Technology, see HAL R. VARIAN, MICROECONOMIC ANALYSIS 10 (1984).
43. RESTATEMENT (SECOND) OF CONTRACTS § 3 cmt. d.
44. See JOHN EDWARD MURRAY, JR., CONTRACTS (3d ed. 1990). The scores of cases that have sought to determine whether, in a given set of facts, an offer has been made, are notoriously deficient in suggesting clear guidelines to determine whether an offer exists. A glance at modern cases often reveals an admission that "[i]t is impossible to formulate a general principle or criterion for its determination." The rationale for this less than helpful conclusion is based on the nature of the question to be determined, which is a question of intention - a question of fact - that can only be determined by considering the objective manifestations of the parties and circumstances under which those manifestations occurred. The only guide suggested by the Restatement 2d is of limited assistance, i.e., whether a purported offeree was justified in understanding a manifestation of intention as creating a power of acceptance. Id. at 68-69.
45. Cf. Farber & Matheson, supra note 24, at 933 ("Whether manifestations rise to the level of a promise depends on various factors, including the clarity of the manifestations, the nature of the relationship between the parties, and the circumstances surrounding the manifestations.").
46. See Alces, supra note 11, at 157 ("[T]he limits imposed on intellectual perception may obscure inquiry on too fundamental a level.").
47. See id. [T]o the extent that Values are only revealed in responses to recurring interreactional contexts, the variety of contingent experiences and reactions to interreactional contexts may present insurmountable obstacles to consensus. Though there may seem to be shared understanding and appreciation of a fundamental Value, the constituent bases of consensus may be different in ways that matter in some but not other contexts. That is the consensus dilemma, which would be revealed to the extent that the same statement of Values generates different Principles for different actors (and, in turn, different Rules). Id. (footnote omitted); cf. HOYNINGEN-HUENE, supra note 5, at 147 ("[I]n certain stages of scientific development we may find coherent traditions in which there is no agreement on basic ontological questions." (footnote omitted)).
48. See Richard Craswell, Against Fuller and Perdue, 67 U. CHI. L. REV. 99 (2000). In 1936, Lon Fuller and William Perdue published an article they called "The Reliance Interest in Contract Damages." In the history of contract law, and of American legal thought in general, this article stands as a towering classic. It changed forever the way we think about monetary remedies for breach of contract. It also exemplified Fuller's particular brand of jurisprudence, showing the power of his critique of formalism. Id. at 99.
49. Fuller & Perdue, supra note 18; L.L. Fuller & William R. Perdue, Jr., The Reliance Interest in Contract Damages: 2, 46 YALE L.J. 373 (1937) [hereinafter Fuller & Perdue, Part 2].
50. Fuller & Perdue, Part 2, supra note 36, at 418 ("The cases . . . show, we believe, that the contractual reliance interest receives a much wider (though often covert) recognition in the decisions than it does in the textbooks.").
51. See Craswell, supra note 35, at 138-54.
52. See Alces, supra note 11, at 166-68.
53. Id. at 166.
54. And, not incidentally, that approach to damages is consistent too with what we expect the Tort law to accomplish. Just as the Tort damages create incentives to avoid the consequences of negligence, the Contract damages, similarly appreciated, create incentives to avoid the consequences of breached promises by providing an award that reflects the extent of our certainty about the parties' intentions to be bound.
55. Symposium, Law and Incommensurability, 146 U. PA. L. REV. 1169 (1998). Craswell treated the consequences of incommensurability for the law: I focus on justifications for decisions because this is when incommensurability becomes important for the law (as well as for welfare economics). It is one thing to ask, in the abstract, whether a beautiful mountain gorge can meaningfully be valued on the same scale that we use to value cheaper electricity. But this question has the most bite when the law for some reason must choose between these values - for example, if there is a proposal to build a dam that would flood the gorge. Welfare economics purports to offer a basis for evaluating that decision and for justifying one choice rather than the other. My interest in incommensurability, therefore, is in the extent to which it undermines this justification. Richard Craswell, Incommensurability. Welfare Economics, and the Law, 146 U. PA. L. REV. 1419, 1421 (1998). On the similar but distinct issue of interpersonal utility comparisons, see Herbert Hovenkamp, Legislation, Well-Being, and Public Choice, 57 U. CHI. L. REV. 63 (1990): [T]he utility effects of legislation cannot generally be measured by economic criteria, because that would require interpersonal utility comparisons. Even with this simple hypothetical vote in a tiny society, the utility effects - the subjective pleasure and harm - of the legislation are unknown The individual utility gains of 51 people who voted for the statute may be very small, while the individual utility losses of the forty-nine opponents quite large. In that case, the legislation would be utility-reducing. The important point, however, is that to say that the legislation is not wealth-maximizing, or allocatively efficient, is to say absolutely nothing about its utility effects. Id. at 82.
56. Symposium, Law and Incommensurability, 146 U. PA. L. REV. 1169 (1998). Craswell treated the consequences of incommensurability for the law: I focus on justifications for decisions because this is when incommensurability becomes important for the law (as well as for welfare economics). It is one thing to ask, in the abstract, whether a beautiful mountain gorge can meaningfully be valued on the same scale that we use to value cheaper electricity. But this question has the most bite when the law for some reason must choose between these values - for example, if there is a proposal to build a dam that would flood the gorge. Welfare economics purports to offer a basis for evaluating that decision and for justifying one choice rather than the other. My interest in incommensurability, therefore, is in the extent to which it undermines this justification. Richard Craswell, Incommensurability. Welfare Economics, and the Law, 146 U. PA. L. REV. 1419, 1421 (1998). On the similar but distinct issue of interpersonal utility comparisons, see Herbert Hovenkamp, Legislation, Well-Being, and Public Choice, 57 U. CHI. L. REV. 63 (1990): [T]he utility effects of legislation cannot generally be measured by economic criteria, because that would require interpersonal utility comparisons. Even with this simple hypothetical vote in a tiny society, the utility effects - the subjective pleasure and harm - of the legislation are unknown The individual utility gains of 51 people who voted for the statute may be very small, while the individual utility losses of the forty-nine opponents quite large. In that case, the legislation would be utility-reducing. The important point, however, is that to say that the legislation is not wealth-maximizing, or allocatively efficient, is to say absolutely nothing about its utility effects. Id. at 82.
57. Symposium, Law and Incommensurability, 146 U. PA. L. REV. 1169 (1998). Craswell treated the consequences of incommensurability for the law: I focus on justifications for decisions because this is when incommensurability becomes important for the law (as well as for welfare economics). It is one thing to ask, in the abstract, whether a beautiful mountain gorge can meaningfully be valued on the same scale that we use to value cheaper electricity. But this question has the most bite when the law for some reason must choose between these values - for example, if there is a proposal to build a dam that would flood the gorge. Welfare economics purports to offer a basis for evaluating that decision and for justifying one choice rather than the other. My interest in incommensurability, therefore, is in the extent to which it undermines this justification. Richard Craswell, Incommensurability. Welfare Economics, and the Law, 146 U. PA. L. REV. 1419, 1421 (1998). On the similar but distinct issue of interpersonal utility comparisons, see Herbert Hovenkamp, Legislation, Well-Being, and Public Choice, 57 U. CHI. L. REV. 63 (1990): [T]he utility effects of legislation cannot generally be measured by economic criteria, because that would require interpersonal utility comparisons. Even with this simple hypothetical vote in a tiny society, the utility effects - the subjective pleasure and harm - of the legislation are unknown The individual utility gains of 51 people who voted for the statute may be very small, while the individual utility losses of the forty-nine opponents quite large. In that case, the legislation would be utility-reducing. The important point, however, is that to say that the legislation is not wealth-maximizing, or allocatively efficient, is to say absolutely nothing about its utility effects. Id. at 82.
58. Matthew Adler captured the context: What is incommensurability? And what is its significance for law? I here delineate, in a very brief and introductory way, the answers that the Symposium participants provide to these questions. As a threshold matter, let me note that this Introduction focuses upon the incommensurability of options or choices, and not the incommensurability of other items (such as values, goods, reasons, life-plans, and norms) that are sometimes described as 'incommensurable.' Although it remains an open philosophical question whether the incommensurability of values, goods, and so forth can always be reduced to the incommensurability of options - and I mean to take no position on that question here - I think it fair to say that the articles and comments in this Symposium are centrally concerned with options or choices rather than with other purportedly incommensurable items. Matthew Adler, Law and Incommensurability: Introduction, 146 U. PA. L. REV. 1169, 69-70 (1998).
59. See, e.g., Eric A. Posner, The Strategic Basis of Principled Behavior: A Critique of the Incommensurability Thesis, 146 U. PA. L. REV. 1185, 1185 (1998). The incommensurability thesis holds that people cannot always value options along a common metric that is normatively justified. Most advocates of this thesis argue that people can choose among options, but that the choice depends on qualitative differences between options that cannot be reduced to vectors on a single dimension of evaluation. Id. (footnote omitted). The tenor of Posner's definition makes clear the threat that incommensurability, as construed in the Symposium and generally, represents for consequentialist analyses such as positive economics. If actors cannot make choices by reference to some quantification that may "be reduced to vectors on a single dimension of evaluation," it would be difficult to conclude that rational choices produce aggregate welfare gains. Incommensurability would even undermine the basis of self-interested action, a tenet of microeconomic theory and the economic analysis of law. If I cannot make choices along a single dimension of evaluation, it is impossible to compare my choices with one another or to compare my choices with anyone else's choices. Richard Craswell, though unwilling to admit the substance of incommensurability, argued that incommensurability would not undermine welfare economics. See Craswell, supra note 37. Richard Warner also defined incommensurability in terms that confirm Adler's formulation: "Reasons are incommensurable when, and only when, they cannot be compared as better, worse, or equally good." Richard Warner, Does Incommensurability Matter? Incommensurability and Public Policy, 146 U. PA. L. REV. 1287, 1287 (1998). So construed, incommensurability is an insurmountable obstacle to public policy. "In forming public policy, we should select the policy supported by the best reasons." Id. Incommensurability makes it impossible to do that. Matthew Adler's principal contribution to the Symposium offered perhaps the most comprehensive definition of incommensurability: Incommensurability: A Practical Definition (1) Options are incommensurable, by a particular scaling procedure, for an agent, with respect to a particular normative criterion, if in light of that criterion the agent has (normative) reason not to use that scaling procedure in choosing between those options. (2) Options are incommensurable, simpliciter, for an agent, with respect to a particular normative criterion, if in light of that criterion the agent has reason not to use any scaling procedure in choosing between those options. (3) Options are incommensurable, simpliciter, for an agent, if in light of the totality of normative considerations the agent has reason not to use any scaling procedure in choosing between those options. Matthew Adler, Incommensurability and Cost-Benefit Analysis, 146 U. PA. L. REV. 1371, 1384 (1998). Frederick Schauer's comments in the Symposium were not limited to option incommensurability but extend to all forms of incommensurability: [T]he typical discussion of commensurability is an inquiry in moral ontology. That is, commensurability is taken to be a property inhering in values, reasons, options, or norms, and much of the debate is about whether that property does or does not inhere in all values, reasons, options, or norms. Those who argue for commensurability maintain that all values, reasons, options, or norms are reducible to some common and thus comparable metric (perhaps dollars, perhaps some other medium of exchange, perhaps utils, or perhaps something else). . . . Relatedly, those who subscribe to the somewhat different position known as comparability maintain that all values, reasons, options, or norms can be compared to each other, even if they cannot be reduced to a common metric. Naturally, those who argue for incommensurability or incomparability deny the phenomenon of commensurability or comparability, and thus maintain that the members of some pairs or sets of reasons, values, options, or norms are irreducibly different. Frederick Schauer, Instrumental Commensurability, 146 U. PA. L. REV. 1215, 1215-16 (1998).
60. See, e.g., Eric A. Posner, The Strategic Basis of Principled Behavior: A Critique of the Incommensurability Thesis, 146 U. PA. L. REV. 1185, 1185 (1998). The incommensurability thesis holds that people cannot always value options along a common metric that is normatively justified. Most advocates of this thesis argue that people can choose among options, but that the choice depends on qualitative differences between options that cannot be reduced to vectors on a single dimension of evaluation. Id. (footnote omitted). The tenor of Posner's definition makes clear the threat that incommensurability, as construed in the Symposium and generally, represents for consequentialist analyses such as positive economics. If actors cannot make choices by reference to some quantification that may "be reduced to vectors on a single dimension of evaluation," it would be difficult to conclude that rational choices produce aggregate welfare gains. Incommensurability would even undermine the basis of self-interested action, a tenet of microeconomic theory and the economic analysis of law. If I cannot make choices along a single dimension of evaluation, it is impossible to compare my choices with one another or to compare my choices with anyone else's choices. Richard Craswell, though unwilling to admit the substance of incommensurability, argued that incommensurability would not undermine welfare economics. See Craswell, supra note 37. Richard Warner also defined incommensurability in terms that confirm Adler's formulation: "Reasons are incommensurable when, and only when, they cannot be compared as better, worse, or equally good." Richard Warner, Does Incommensurability Matter? Incommensurability and Public Policy, 146 U. PA. L. REV. 1287, 1287 (1998). So construed, incommensurability is an insurmountable obstacle to public policy. "In forming public policy, we should select the policy supported by the best reasons." Id. Incommensurability makes it impossible to do that. Matthew Adler's principal contribution to the Symposium offered perhaps the most comprehensive definition of incommensurability: Incommensurability: A Practical Definition (1) Options are incommensurable, by a particular scaling procedure, for an agent, with respect to a particular normative criterion, if in light of that criterion the agent has (normative) reason not to use that scaling procedure in choosing between those options. (2) Options are incommensurable, simpliciter, for an agent, with respect to a particular normative criterion, if in light of that criterion the agent has reason not to use any scaling procedure in choosing between those options. (3) Options are incommensurable, simpliciter, for an agent, if in light of the totality of normative considerations the agent has reason not to use any scaling procedure in choosing between those options. Matthew Adler, Incommensurability and Cost-Benefit Analysis, 146 U. PA. L. REV. 1371, 1384 (1998). Frederick Schauer's comments in the Symposium were not limited to option incommensurability but extend to all forms of incommensurability: [T]he typical discussion of commensurability is an inquiry in moral ontology. That is, commensurability is taken to be a property inhering in values, reasons, options, or norms, and much of the debate is about whether that property does or does not inhere in all values, reasons, options, or norms. Those who argue for commensurability maintain that all values, reasons, options, or norms are reducible to some common and thus comparable metric (perhaps dollars, perhaps some other medium of exchange, perhaps utils, or perhaps something else). . . . Relatedly, those who subscribe to the somewhat different position known as comparability maintain that all values, reasons, options, or norms can be compared to each other, even if they cannot be reduced to a common metric. Naturally, those who argue for incommensurability or incomparability deny the phenomenon of commensurability or comparability, and thus maintain that the members of some pairs or sets of reasons, values, options, or norms are irreducibly different. Frederick Schauer, Instrumental Commensurability, 146 U. PA. L. REV. 1215, 1215-16 (1998).
61. See, e.g., Eric A. Posner, The Strategic Basis of Principled Behavior: A Critique of the Incommensurability Thesis, 146 U. PA. L. REV. 1185, 1185 (1998). The incommensurability thesis holds that people cannot always value options along a common metric that is normatively justified. Most advocates of this thesis argue that people can choose among options, but that the choice depends on qualitative differences between options that cannot be reduced to vectors on a single dimension of evaluation. Id. (footnote omitted). The tenor of Posner's definition makes clear the threat that incommensurability, as construed in the Symposium and generally, represents for consequentialist analyses such as positive economics. If actors cannot make choices by reference to some quantification that may "be reduced to vectors on a single dimension of evaluation," it would be difficult to conclude that rational choices produce aggregate welfare gains. Incommensurability would even undermine the basis of self-interested action, a tenet of microeconomic theory and the economic analysis of law. If I cannot make choices along a single dimension of evaluation, it is impossible to compare my choices with one another or to compare my choices with anyone else's choices. Richard Craswell, though unwilling to admit the substance of incommensurability, argued that incommensurability would not undermine welfare economics. See Craswell, supra note 37. Richard Warner also defined incommensurability in terms that confirm Adler's formulation: "Reasons are incommensurable when, and only when, they cannot be compared as better, worse, or equally good." Richard Warner, Does Incommensurability Matter? Incommensurability and Public Policy, 146 U. PA. L. REV. 1287, 1287 (1998). So construed, incommensurability is an insurmountable obstacle to public policy. "In forming public policy, we should select the policy supported by the best reasons." Id. Incommensurability makes it impossible to do that. Matthew Adler's principal contribution to the Symposium offered perhaps the most comprehensive definition of incommensurability: Incommensurability: A Practical Definition (1) Options are incommensurable, by a particular scaling procedure, for an agent, with respect to a particular normative criterion, if in light of that criterion the agent has (normative) reason not to use that scaling procedure in choosing between those options. (2) Options are incommensurable, simpliciter, for an agent, with respect to a particular normative criterion, if in light of that criterion the agent has reason not to use any scaling procedure in choosing between those options. (3) Options are incommensurable, simpliciter, for an agent, if in light of the totality of normative considerations the agent has reason not to use any scaling procedure in choosing between those options. Matthew Adler, Incommensurability and Cost-Benefit Analysis, 146 U. PA. L. REV. 1371, 1384 (1998). Frederick Schauer's comments in the Symposium were not limited to option incommensurability but extend to all forms of incommensurability: [T]he typical discussion of commensurability is an inquiry in moral ontology. That is, commensurability is taken to be a property inhering in values, reasons, options, or norms, and much of the debate is about whether that property does or does not inhere in all values, reasons, options, or norms. Those who argue for commensurability maintain that all values, reasons, options, or norms are reducible to some common and thus comparable metric (perhaps dollars, perhaps some other medium of exchange, perhaps utils, or perhaps something else). . . . Relatedly, those who subscribe to the somewhat different position known as comparability maintain that all values, reasons, options, or norms can be compared to each other, even if they cannot be reduced to a common metric. Naturally, those who argue for incommensurability or incomparability deny the phenomenon of commensurability or comparability, and thus maintain that the members of some pairs or sets of reasons, values, options, or norms are irreducibly different. Frederick Schauer, Instrumental Commensurability, 146 U. PA. L. REV. 1215, 1215-16 (1998).
62. See, e.g., Eric A. Posner, The Strategic Basis of Principled Behavior: A Critique of the Incommensurability Thesis, 146 U. PA. L. REV. 1185, 1185 (1998). The incommensurability thesis holds that people cannot always value options along a common metric that is normatively justified. Most advocates of this thesis argue that people can choose among options, but that the choice depends on qualitative differences between options that cannot be reduced to vectors on a single dimension of evaluation. Id. (footnote omitted). The tenor of Posner's definition makes clear the threat that incommensurability, as construed in the Symposium and generally, represents for consequentialist analyses such as positive economics. If actors cannot make choices by reference to some quantification that may "be reduced to vectors on a single dimension of evaluation," it would be difficult to conclude that rational choices produce aggregate welfare gains. Incommensurability would even undermine the basis of self-interested action, a tenet of microeconomic theory and the economic analysis of law. If I cannot make choices along a single dimension of evaluation, it is impossible to compare my choices with one another or to compare my choices with anyone else's choices. Richard Craswell, though unwilling to admit the substance of incommensurability, argued that incommensurability would not undermine welfare economics. See Craswell, supra note 37. Richard Warner also defined incommensurability in terms that confirm Adler's formulation: "Reasons are incommensurable when, and only when, they cannot be compared as better, worse, or equally good." Richard Warner, Does Incommensurability Matter? Incommensurability and Public Policy, 146 U. PA. L. REV. 1287, 1287 (1998). So construed, incommensurability is an insurmountable obstacle to public policy. "In forming public policy, we should select the policy supported by the best reasons." Id. Incommensurability makes it impossible to do that. Matthew Adler's principal contribution to the Symposium offered perhaps the most comprehensive definition of incommensurability: Incommensurability: A Practical Definition (1) Options are incommensurable, by a particular scaling procedure, for an agent, with respect to a particular
63. See TREBILCOCK, supra note 8.
64. See id. at 91.
65. Adler, supra note 44, at 1384. We could as easily conform the second and third Adler incommensurability alternative definitions to the Contract question, by saying that "with respect to a particular normative criterion [say, the inviolability of one's body, or, more generally, human dignity], the agent [and you can conceive of the Contract law as the agent] has reason not to use any scaling procedure in choosing between those options [enforce promise and child receives medical care, refuse to enforce promise and child dies but mother's bodily integrity is maintained]." Id. Similarly, with regard to the third definition, we may say that given the "totality of normative considerations," value of human life, inviolability of body, "the agent has reason not to use any scaling procedure in choosing between those options." Id.
66. Trebilcock actually drew the hypothetical from ALAN WERTHEIMER, COERCION 10, 225, 229 (1987).
67. TREBILCOCK, supra note 8, at 91.
68. Though this arises in the context of Tort, the bargain valued is the bargain between the direct tort victim and the party whose right of consortium is compromised by the tortfeasor.
69. Posner, supra note 44, at 1185.
70. United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947). Since there are occasions when every vessel will break from her moorings, and, since, if she does, she becomes a menace to those about her, the owner's duty, as in other similar situations, to provide against resulting injuries is a function of three variables: (1) The probability that she will break away; (2) the gravity of the resulting injury, if she does; (3) the burden of adequate precautions. Possibly it serves to bring this notion into relief to state it in algebraic terms: if the probability be called P; the injury L; and the burden B; liability depends upon whether B is less than L multiplied by P; i.e., whether B is less than PL. Id. Cardozo captured the same idea of interrelation among rational units in legal analysis with his famous postulate from Palsgraf. "The risk reasonably to be perceived defines the duty to be obeyed and risk imports relation; it is risk to another or to others within the range of apprehension." Palsgraf v. Long Island R.R. Co., 162 N.E. 99 (1928).
71. In addition to negligence, the defect calculus in the strict products liability law draws on Handlike balancing. See RESTATEMENT (THIRD) OF PRODUCTS LIABILITY § 2 cmt. f (1998).
72. But Goetz and Scott have offered a formula to determine the Contract damages calculus: Let p be the promisor's reasonable, subjective assessment of the probability that he will perform a promise under an existing legal rule calling for damages of D in the event of breach. For the damage rule to deter all promises with net social costs and encourage those with net benefits, the amount of damages awarded must satisfy the following equation: (1-p)D=(1-P)R-PB where R and B are the values of detrimental and beneficial reliances, respectively. Goetz & Scott, supra note 4, at 1281.
73. RESTATEMENT (SECOND) OF CONTRACTS § 211(3) (1981). That idea is acknowledged in Section 211 of the Second Restatement, concerning so-called "standard terms": Where [a] party has reason to believe that the party manifesting . . . assent [to a standardized agreement] would not do so if he knew that the writing contained a particular term, the term is not part of the agreement. Id.
74. Subsection (1) of § 90 explains that A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires. Id. § 90(1) (emphasis added).
75. Id. § 90 cmt. d (emphasis added).
76. Id. § 90 cmt. d, illus. 10. The illustration is based on Hoffman v. Red Owl Stores, 133 N.W.2d 267 (Wis. 1965).
77. Farber & Matheson, supra note 28.
78. The authors reported that they "collected every case in the past ten years citing section 90 of either Restatement, and categorized the outcomes." Id. at 907. The accompanying footnote explained: Shepard's Citations, Restatement of the Law, Vol. 9, No. 3 (May 1985), identified 222 of such cases. These cases formed our primary data base. As an alternative measure of the popularity of promissory estoppel, we ran a LEXIS search (Genfed and States libraries) for cases since January 1, 1980, that use the term "Promissory estoppel." We also reviewed the 540 cases identified by this search. Many of these cases, however, merely mentioned the doctrine without applying it. The numbers and percentages discussed in subsequent footnotes are all based on the primary data base of 222 cases. Id. at 907 n. 14.
79. Id. at 930.
80. "[R]ecent cases are heavily weighted towards the award of full expectation damages." Id. at 909; see also id. at 909 n.24 ("The courts addressed the issue of the extent of recovery in 72 of the cases in our data group. In only one-sixth of those cases was recovery limited explicitly to reliance damages. Full expectation recovery was granted in the remaining five-sixths of the cases.") The authors also recognized and noted that the two measures, reliance and expectation, may produce the same dollar amount results. Id.
81. Edward Yorio & Steve Thel, The Promissory Basis of Section 90, 101 YALE L.J. 111 (1991).
82. Id. at 129.
83. Robert A. Hillman, Questioning the "New Consensus" on Promissory Estoppel: An Empirical and Theoretical Study, 98 COLUM. L. REV. 580, 582 (1998).
84. Id. at 582 n. 15. The list of cases was compiled from a search on LEXIS of all cases within the time frame [July 1, 1994 through June 30, 1996] that mentioned "promissory estoppel." The two-part search run in the MEGA library and MEGA file was: "DATE (AFT 7/01/95 & BEF 7/01/96) AND Promissory Estoppel" and "DATE (6/30/94 & BEF 7/02/95) AND Promissory Estoppel." The search yielded 911 federal and state cases. From these, all cases that did not include a discussion of, or base a holding on, promissory estoppel were eliminated, yielding 362 cases that were then analyzed and coded. Cases reported by a LEXIS search of all cases mentioning either the first or second Restatement section 90 but not "promissory estoppel" yielded only four additional cases, only one of which was clearly decided on promissory estoppel grounds. Id.
85. Id. at 588.
86. Sidney W. DeLong, The New Requirement of Enforcement Reliance in Commercial Promissory Estoppel: Section 90 as Catch-22, 1997 WIS. L. REV. 943.
87. Id. at 948.
88. Id. at 984 (footnote omitted).
89. It would seem that one explanation for the conflicting conclusions may be in the nature of the relationship between promise and reliance in the promissory estoppel setting. An expression is & promise, to an extent, because it is the type of representation on which one may rely; more importantly, the fact that the addressee of the expression relies on the expression is some evidence that the expression was a promise. So there is a symbiotic relationship between the two. DeLong alluded to that without elaboration: "It is not surprising to see the elements of specificity and reliance failing in the same case. An equivocal promise is less likely to induce actual reliance." Id. at 986 n.137. So the fact that you have relied on what I said supports the conclusion that what I said was a promise and, conversely, the fact that I made a promise supports the conclusion that what you did after I made the promise was foreseeably in reasonable reliance on the promise. To that effect, see Yorio & Thel, supra note 63, at 159-63, who explain that actual reliance is evidence of the existence of promise and foreseeability of reliance. Cf. Randy E. Barnett, A Consent Theory of Contract, 86 COLUM. L. REV. 269, 276 (1986) ("[E]very promisor should reasonably expect to induce reliance."); DeLong, supra note 68, at 952 ("Promisee reliance is implicit in the Restatement definition of 'promise,' which is couched in terms of the promisee's undertaking.").
90. Fuller & Perdue, supra note 18, at 74. [W]here the reliance interest is conceived to embrace the loss of the opportunity to enter similar contracts with other persons, the reliance and expectation interests will have a tendency to approach one another, the precise degree of their correspondence depending upon the extent to which other opportunities of a similar nature were open to the plaintiff when he entered the contract on which suit is brought. Id.
91. See DeLong, supra note 68, at 979 ("[A] court that appears to be awarding expectation damages may be intending to award reliance and vice versa."); Farber & Matheson, supra note 28, at 909 n.24 ("Depending on how the expectation and reliance interests are conceptualized, the two measures may tend to produce the same results."); Hillman, supra note 65, at 601 ("[C]ourts often talk expectancy or reliance in situations where the remedies are identical.").
92. Yorio & Thel, supra note 63, at 149-50; see also id. at 162 ("What distinguishes enforcement from unenforceable promises is the quality of the commitment made by the promisor." (emphasis added)); cf. Farber & Matheson, supra note 28, at 933 ("Whether manifestations rise to the level of a promise depends on various factors, including the clarity of the manifestations, the nature of the relationship between the parties, and the circumstances surrounding the manifestations.").
93. See Michael B. Metzger & Michael J. Phillips, The Emergence of Promissory Estoppel as an Independent Theory of Recovery, 35 RUTGERS L. REV. 472, 500 (breaching promisor's culpability may determine recovery of lost profits); Yorio & Thel, supra note 63, at 139 n.177 (citing E. ALLAN FARNSWORTH, CONTRACTS § 2.19, at 100-01 (2d ed. 1990)) (expectation appropriate measure against breaching promisor who acts in bad faith).
94. See Michael B. Metzger & Michael J. Phillips, The Emergence of Promissory Estoppel as an Independent Theory of Recovery, 35 RUTGERS L. REV. 472, 500 (breaching promisor's culpability may determine recovery of lost profits); Yorio & Thel, supra note 63, at 139 n.177 (citing E. ALLAN FARNSWORTH, CONTRACTS § 2.19, at 100-01 (2d ed. 1990)) (expectation appropriate measure against breaching promisor who acts in bad faith).
95. See DeLong, supra note 68; Hillman, supra note 65.
96. Cf. James Gordley, Enforcing Promises, 82 CAL. L. REV. 547, 582-84 (analyzing cases of "gratuitous agency" and finding that relief in such cases "can be explained by a simpler principle than detrimental reliance: that promises that entail little cost to oneself are binding").
97. The Restatement (Second) of Contracts provides: (1) Damages are not recoverable for loss that the party in breach did not have reason to foresee as a probable result of the breach when the contract was made. (2) Loss may be foreseeable as a probable result of a breach because it follows from the breach (a) in the ordinary course of events, or (b) as a result of special circumstances, beyond the ordinary course of events, that the party in breach had reason to know. (3) A court may limit damages for foreseeable loss by excluding recovery for loss of profits, by allowing recovery only for loss incurred in reliance, or otherwise if it concludes that in the circumstances justice so requires in order to avoid disproportionate compensation. RESTATEMENT (SECOND) OF CONTRACTS § 351 (1981); see also U.C.C. § 2-715 (2000).
98. 673 F.2d 951 (7th Cir. 1982).
99. 156 Eng. Rep. 145 (1854). Hadley was described by the Seventh Circuit as "the leading common law case on liability for consequential damages caused by failure or delay in carrying out a commercial undertaking." Evra Corp., 673 F.2d at 955.
100. 37 N.E.2d 868 (Ill. App. Ct. 1941) (action against telegraph company for misdirection of money order that caused plaintiff pecuniary loss).
101. Evra Corp., 673 F.2d at 955.
102. Id. at 957.
103. Id. at 958.
104. 159 F.2d 169, 173 (2d Cir. 1947); see supra text accompanying notes 52-54.
105. Palsgraf v. Long Island R.R. Co., 162 N.E. 99 (1928); see supra text accompanying notes 52-54.
106. Evra Corp., 673 F.2d at 958 (citing Palsgraf v. Long Island R.R. Co., 162 N.E. 99 (1928)).
107. RESTATEMENT (SECOND) OF CONTRACTS (1981) provides: If a contract or term thereof is unconscionable at the time the contract is made a court may refuse to enforce the contract, or may enforce the remainder of the contract without the unconscionable term, or may so limit the application of any unconscionable term as to avoid any unconscionable result. Id. § 208; see also U.C.C. § 2-302(1) (2000).
108. 105 F.3d 1147 (7th Cir. 1997).
109. Id. at 1148. The facts of the case are a bit richer than that brief rendition, but Easterbrook's statement of them in terms of the Contract issue accommodates the application of his analysis to a broader array of more technologically sophisticated contracting forms.
110. See U.C.C. § 1-103 (2000) ("Unless displaced by the particular provisions of this Act, the principles of law and equity, including the law merchant and the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy or other validating or invalidating cause shall supplement its provisions.") While it is not so clear that Section 2-207 of the Code is wholly inapposite on the Hill facts, the court treated the Contracts issue as a matter of common law and thereby said something about the common law bargain concept See Hill, 105 F.3d at 1148-50.
111. Id. at 1150.
112. Id. at 1149 (emphasis added).
113. Perhaps, the best example of its application is Section 2-207 of the Uniform Commercial Code, but that provision does not actually enforce terms which the parties in fact had no opportunity to read.
114. See supra note 54.
115. See Brian Leiter, Naturalism and Naturalized Jurisprudence, in ANALYZING LAW: NEW ESSAYS IN LEGAL THEORY 79 (Brian Bix ed., 1998) [hereinafter Leiter, Naturalism]; Brian Leiter, Rethinking Legal Realism: Toward a Naturalized Jurisprudence, 76 TEX. L. REV. 267 (1997) [hereinafter Leiter, Rethinking].
116. See Brian Leiter, Naturalism and Naturalized Jurisprudence, in ANALYZING LAW: NEW ESSAYS IN LEGAL THEORY 79 (Brian Bix ed., 1998) [hereinafter Leiter, Naturalism]; Brian Leiter, Rethinking Legal Realism: Toward a Naturalized Jurisprudence, 76 TEX. L. REV. 267 (1997) [hereinafter Leiter, Rethinking].
117. E.g., K.N. LLEWELLYN, THE BRAMBLE BUSH (1930); Karl N. Llewellyn, A Realistic Jurisprudence - the Next Step, 30 COLUM. L. REV. 431 (1930); Karl N. Llewellyn, Some Realism About Realism - Responding to Dean Pound, 44 HARV. L. REV. 1222 (1931).
118. E.g., K.N. LLEWELLYN, THE BRAMBLE BUSH (1930); Karl N. Llewellyn, A Realistic Jurisprudence - the Next Step, 30 COLUM. L. REV. 431 (1930); Karl N. Llewellyn, Some Realism About Realism - Responding to Dean Pound, 44 HARV. L. REV. 1222 (1931).
119. E.g., K.N. LLEWELLYN, THE BRAMBLE BUSH (1930); Karl N. Llewellyn, A Realistic Jurisprudence - the Next Step, 30 COLUM. L. REV. 431 (1930); Karl N. Llewellyn, Some Realism About Realism - Responding to Dean Pound, 44 HARV. L. REV. 1222 (1931).
120. E.g., JEROME FRANK, LAW AND THE MODERN MIND (1930); Jerome Frank, Are Judges Human? 80 U. PA. L. REV. 17 (1931). Leiter noted the "Frankification" of realism: "the now dominant tendency to treat Jerome Frank's particular interpretation of the Core Claim as identical to Realism." Leiter, Rethinking, supra note 96, at 269. Leiter concluded that the Core Claim of realism "is that judges reach decisions based on what they think would be fair on the facts of the case, rather than on the basis of the applicable rules of law." Id. at 275. The Frank corollary, if you will, focuses on the personality of the judge in the adjudicatory process: "[T]he Stimuli affecting the judge [multiplied by] the Personality of the judge [equals] Decisions." Jerome Frank, Are Judges Human? Part Two: As Through a Class Darkly, 80 U. PA. L. REV. 233, 242 (1931).
121. E.g., JEROME FRANK, LAW AND THE MODERN MIND (1930); Jerome Frank, Are Judges Human? 80 U. PA. L. REV. 17 (1931). Leiter noted the "Frankification" of realism: "the now dominant tendency to treat Jerome Frank's particular interpretation of the Core Claim as identical to Realism." Leiter, Rethinking, supra note 96, at 269. Leiter concluded that the Core Claim of realism "is that judges reach decisions based on what they think would be fair on the facts of the case, rather than on the basis of the applicable rules of law." Id. at 275. The Frank corollary, if you will, focuses on the personality of the judge in the adjudicatory process: "[T]he Stimuli affecting the judge [multiplied by] the Personality of the judge [equals] Decisions." Jerome Frank, Are Judges Human? Part Two: As Through a Class Darkly, 80 U. PA. L. REV. 233, 242 (1931).
122. E.g., JEROME FRANK, LAW AND THE MODERN MIND (1930); Jerome Frank, Are Judges Human? 80 U. PA. L. REV. 17 (1931). Leiter noted the "Frankification" of realism: "the now dominant tendency to treat Jerome Frank's particular interpretation of the Core Claim as identical to Realism." Leiter, Rethinking, supra note 96, at 269. Leiter concluded that the Core Claim of realism "is that judges reach decisions based on what they think would be fair on the facts of the case, rather than on the basis of the applicable rules of law." Id. at 275. The Frank corollary, if you will, focuses on the personality of the judge in the adjudicatory process: "[T]he Stimuli affecting the judge [multiplied by] the Personality of the judge [equals] Decisions." Jerome Frank, Are Judges Human? Part Two: As Through a Class Darkly, 80 U. PA. L. REV. 233, 242 (1931).
123. E.g., JEROME FRANK, LAW AND THE MODERN MIND (1930); Jerome Frank, Are Judges Human? 80 U. PA. L. REV. 17 (1931). Leiter noted the "Frankification" of realism: "the now dominant tendency to treat Jerome Frank's particular interpretation of the Core Claim as identical to Realism." Leiter, Rethinking, supra note 96, at 269. Leiter concluded that the Core Claim of realism "is that judges reach decisions based on what they think would be fair on the facts of the case, rather than on the basis of the applicable rules of law." Id. at 275. The Frank corollary, if you will, focuses on the personality of the judge in the adjudicatory process: "[T]he Stimuli affecting the judge [multiplied by] the Personality of the judge [equals] Decisions." Jerome Frank, Are Judges Human? Part Two: As Through a Class Darkly, 80 U. PA. L. REV. 233, 242 (1931).
124. E.g., Underbill Moore & Charles C. Callahan, Law and Learning Theory: A Study in Legal Control, 53 YALE L.J. 1 (1943); Underbill Moore & Gilbert Sussman, Legal and Institutional Methods Applied to the Debiting of Direct Discounts, 40 YALE L.J. 1219 (1931).
125. E.g., Underbill Moore & Charles C. Callahan, Law and Learning Theory: A Study in Legal Control, 53 YALE L.J. 1 (1943); Underbill Moore & Gilbert Sussman, Legal and Institutional Methods Applied to the Debiting of Direct Discounts, 40 YALE L.J. 1219 (1931).
126. Herman Oliphant, A Return to Stare Decisis, 14 A.B.A. J. 71 (1928).
127. Brian Leiter cited Leon Green's casebook, THE JUDICIAL PROCESS IN TORT CASES (1931), as an exemplar of teaching materials composed in the realist tradition, organized "not by typical doctrinal categories . . . but rather by the situation types in which harms occur." Leiter, Rethinking, supra note 96, at 283 n.77.
128. Brian Leiter cited Leon Green's casebook, THE JUDICIAL PROCESS IN TORT CASES (1931), as an exemplar of teaching materials composed in the realist tradition, organized "not by typical doctrinal categories . . . but rather by the situation types in which harms occur." Leiter, Rethinking, supra note 96, at 283 n.77.
129. See, e.g., W.V. Quine, Epistemology Naturalized, in ONTOLOGICAL RELATIVITY AND OTHER ESSAYS 69 (1969). Leiter also noted that several other philosophers, including Jerry Fodor, David Armstrong, David Lewis, Jaegwon Kim, and Alvin Golman, have contributed to the naturalism development: "[I]ndeed, it would not be wrong to say that it is the distinctive development in philosophy over the last thirty years." Leiter, Rethinking, supra note 96, at 286-87.
130. See, e.g., W.V. Quine, Epistemology Naturalized, in ONTOLOGICAL RELATIVITY AND OTHER ESSAYS 69 (1969). Leiter also noted that several other philosophers, including Jerry Fodor, David Armstrong, David Lewis, Jaegwon Kim, and Alvin Golman, have contributed to the naturalism development: "[I]ndeed, it would not be wrong to say that it is the distinctive development in philosophy over the last thirty years." Leiter, Rethinking, supra note 96, at 286-87.
131. See Leiter, Rethinking, supra note 96, at 294-95 ("We can find, I shall argue, analogues of both steps [of Quine's argument for Replacement Naturalism] in the Realists' approach to the theory of adjudication."). The analogy, simply put, is this: just as philosophic pragmatists [such as Quine] hold that it is a criterion of acceptability for particular epistemic norms that they work for us as humans - e.g., by helping us predict sensory experience - so, too, it is a criterion of acceptability for a theory of adjudication for the Realists that it work for lawyers. Id. at 309.
132. Leiter, Rethinking, supra note 96, at 315.
133. Edward Wilson offered a catalog of the features of science that distinguish it from "pseudoscience": [F]irst, repeatability: The same phenomenon is sought again, preferably by independent investigation, and the interpretation given to it is confirmed or discarded by means of novel analysis and explanation. Second, economy: Scientists attempt to abstract information into the form that is both simplest and aesthetically most pleasing-the combination called elegance - while yielding the largest amount of information with the least amount of effort. Third, mensuration: If something can be properly measured, using universally accepted scales, generalizations about it are rendered unambiguous. Fourth, heuristics: The best science stimulates further discovery, often in unpredictable new directions; and the new knowledge provides an additional test of the original principles that led to its discovery. Fifth and finally, consilience: The explanations of different phenomena most likely to survive are those than can be connected and proved consistent with one another. WILSON, supra note 5, at 53.
134. The natural sciences have been offered as the "best extant example" of the nature of knowledge. LARRY LAUDAN, PROGRESS AND ITS PROBLEMS: TOWARDS A THEORY OF SCIENTIFIC GROWTH 1 (1977). Construed as a judgment on the epistemological integrity of the natural sciences, that conclusion concurs with the appraisal of Thomas Kuhn, whose work on scientific revolution has touched many disciplines, including law. THOMAS S. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS (3d ed. 1996). Indeed, every legal commentator who has referred to "paradigmatic shift" or some close variant thereof probably owes an unacknowledged (and even unrealized) debt to Professor Kuhn, whose work endeavors to describe what it means for a paradigm to shift in the natural sciences, at least. See, e.g., Melvin Aron Eisenberg, The Bargain Principle and Its Limits, 95 HARV. L. REV. 741, 751 (1982) (drawing on the Kuhnian sense of paradigm). Kuhn observed, in terms that distinguish scientific inquiry, that The scientist must . . . be concerned to understand the world and to extend the precision and scope with which it has been ordered. That commitment must, in turn, lead him to scrutinize . . . some aspect of nature in great empirical detail. And, if that scrutiny displays pockets of apparent disorder, then these must challenge him to a new refinement of his observational techniques or to a further articulation of his theories. KUHN, supra, at 42 (emphasis added).
135. The natural sciences have been offered as the "best extant example" of the nature of knowledge. LARRY LAUDAN, PROGRESS AND ITS PROBLEMS: TOWARDS A THEORY OF SCIENTIFIC GROWTH 1 (1977). Construed as a judgment on the epistemological integrity of the natural sciences, that conclusion concurs with the appraisal of Thomas Kuhn, whose work on scientific revolution has touched many disciplines, including law. THOMAS S. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS (3d ed. 1996). Indeed, every legal commentator who has referred to "paradigmatic shift" or some close variant thereof probably owes an unacknowledged (and even unrealized) debt to Professor Kuhn, whose work endeavors to describe what it means for a paradigm to shift in the natural sciences, at least. See, e.g., Melvin Aron Eisenberg, The Bargain Principle and Its Limits, 95 HARV. L. REV. 741, 751 (1982) (drawing on the Kuhnian sense of paradigm). Kuhn observed, in terms that distinguish scientific inquiry, that The scientist must . . . be concerned to understand the world and to extend the precision and scope with which it has been ordered. That commitment must, in turn, lead him to scrutinize . . . some aspect of nature in great empirical detail. And, if that scrutiny displays pockets of apparent disorder, then these must challenge him to a new refinement of his observational techniques or to a further articulation of his theories. KUHN, supra, at 42 (emphasis added).
136. The natural sciences have been offered as the "best extant example" of the nature of knowledge. LARRY LAUDAN, PROGRESS AND ITS PROBLEMS: TOWARDS A THEORY OF SCIENTIFIC GROWTH 1 (1977). Construed as a judgment on the epistemological integrity of the natural sciences, that conclusion concurs with the appraisal of Thomas Kuhn, whose work on scientific revolution has touched many disciplines, including law. THOMAS S. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS (3d ed. 1996). Indeed, every legal commentator who has referred to "paradigmatic shift" or some close variant thereof probably owes an unacknowledged (and even unrealized) debt to Professor Kuhn, whose work endeavors to describe what it means for a paradigm to shift in the natural sciences, at least. See, e.g., Melvin Aron Eisenberg, The Bargain Principle and Its Limits, 95 HARV. L. REV. 741, 751 (1982) (drawing on the Kuhnian sense of paradigm). Kuhn observed, in terms that distinguish scientific inquiry, that The scientist must . . . be concerned to understand the world and to extend the precision and scope with which it has been ordered. That commitment must, in turn, lead him to scrutinize . . . some aspect of nature in great empirical detail. And, if that scrutiny displays pockets of apparent disorder, then these must challenge him to a new refinement of his observational techniques or to a further articulation of his theories. KUHN, supra, at 42 (emphasis added).
137. LAUDAN, supra note 106, at 48.
138. Id. at 191 (footnote omitted).
139. Id. Disciplines like metaphysics, theology, even literary criticism exhibit all the features we require for making rationale appraisals of the relative merits of competing ideologies within them. The nonsciences, every bit as much as the sciences, have empirical and conceptual problems; both can be shown to have made significant progress at certain stages of their historical evolution. Id.
140. Id.
141. See supra note 34.
142. "Scientific progress would thus consist not in a 'drawing closer to the truth' in the sense of a progressive approximation of the true nature of things but rather in an ever-improving ability to identify purely object-sided equivalence." HOYNINGEN-HUENE, supra note 5, at 57. Hoyningen-Huene also provocatively asserted (in terms that may have some resonance with the consensus dilemma) that "[t]wo stimulus situations rather count as equivalent [or, you could read, measurably verifiable] if they agree in those features which, for biological reasons, are perceptually efficacious, even if they differ in their perceptually inert aspects." Id.
143. To put that idea succinctly, albeit roughly, for Ted Williams and Tony Gwynn there is a science of hitting a baseball thrown upwards of ninety miles an hour; for the casual fan (and, indeed, many professional athletes), hitting is not a science.
144. That is not to admit, though, that every relation that may be captured in empirical terms certainly confirms scientific analysis. The fact that there is a "Hand Formula" describing portions of the law of nonconsensual relations is not sufficient to conclude there is a "Tort science." There may be, but B
145. See Randy E. Barnett, The Richness of Contract Theory, 97 MICH. L. REV. 1413 (1999) (reviewing ROBERT A. HILLMAN, THE RICHNESS OF CONTRACT LAW: AN ANALYSIS AND CRITIQUE OF CONTEMPORARY THEORIES OF CONTRACT LAW (1997)).
146. See Randy E. Barnett, The Richness of Contract Theory, 97 MICH. L. REV. 1413 (1999) (reviewing ROBERT A. HILLMAN, THE RICHNESS OF CONTRACT LAW: AN ANALYSIS AND CRITIQUE OF CONTEMPORARY THEORIES OF CONTRACT LAW (1997)).
147. Id. at 1414.
148. See Alces, supra note 11, at 154-56.
149. Craswell, supra note 35, at 106-36.
150. Craswell cited Ian Ayres & Robert Gertner, Filling Gaps in Incomplete Contacts: An Economic Theory of Default Rules, 99 YALE L.J. 87 (1989), and Symposium on Default Rules and Contractual Consent, 3 S. CAL INTERDISC. L.J. 1 (1994), as examples of scholarship written from a microeconomic perspective that focuses on the incentives created by Contract remedial schemes. Craswell, supra note 30 at 107 n.30 Though there are many other examples of such consequentialist theory, two articles by Charles Goetz and Robert Scott perhaps best capture the tenor of the law and economics perspective insofar as it supports a fundamental theory of Contract. See Charles J. Goetz & Robert E. Scott, The Mitigalion Principle: Toward a General Theory of Contractual Obligation, 69 VA. L. REV. 967 (1983), Goetz & Scott, supra note 4. The foundation of positive economic theory is Jeremy Bentham's "principle of the greatest happiness of the greatest number, and [Bentham] sought to make himself the Newton of the legal and moral world by establishing the principles of an experimental science governing tha sphere, much as Newton had formulated the fundamental laws of the physical word." LORD LLOYD OF HAMSTED & M.D.A. FREEMAN, LLOYD'S INTRODUCTION TO JURISPRUDENCE 206 (6th ed. 1994).
151. Craswell cited Ian Ayres & Robert Gertner, Filling Gaps in Incomplete Contacts: An Economic Theory of Default Rules, 99 YALE L.J. 87 (1989), and Symposium on Default Rules and Contractual Consent, 3 S. CAL INTERDISC. L.J. 1 (1994), as examples of scholarship written from a microeconomic perspective that focuses on the incentives created by Contract remedial schemes. Craswell, supra note 30 at 107 n.30 Though there are many other examples of such consequentialist theory, two articles by Charles Goetz and Robert Scott perhaps best capture the tenor of the law and economics perspective insofar as it supports a fundamental theory of Contract. See Charles J. Goetz & Robert E. Scott, The Mitigalion Principle: Toward a General Theory of Contractual Obligation, 69 VA. L. REV. 967 (1983), Goetz & Scott, supra note 4. The foundation of positive economic theory is Jeremy Bentham's "principle of the greatest happiness of the greatest number, and [Bentham] sought to make himself the Newton of the legal and moral world by establishing the principles of an experimental science governing tha sphere, much as Newton had formulated the fundamental laws of the physical word." LORD LLOYD OF HAMSTED & M.D.A. FREEMAN, LLOYD'S INTRODUCTION TO JURISPRUDENCE 206 (6th ed. 1994).
152. Craswell cited Ian Ayres & Robert Gertner, Filling Gaps in Incomplete Contacts: An Economic Theory of Default Rules, 99 YALE L.J. 87 (1989), and Symposium on Default Rules and Contractual Consent, 3 S. CAL INTERDISC. L.J. 1 (1994), as examples of scholarship written from a microeconomic perspective that focuses on the incentives created by Contract remedial schemes. Craswell, supra note 30 at 107 n.30 Though there are many other examples of such consequentialist theory, two articles by Charles Goetz and Robert Scott perhaps best capture the tenor of the law and economics perspective insofar as it supports a fundamental theory of Contract. See Charles J. Goetz & Robert E. Scott, The Mitigalion Principle: Toward a General Theory of Contractual Obligation, 69 VA. L. REV. 967 (1983), Goetz & Scott, supra note 4. The foundation of positive economic theory is Jeremy Bentham's "principle of the greatest happiness of the greatest number, and [Bentham] sought to make himself the Newton of the legal and moral world by establishing the principles of an experimental science governing tha sphere, much as Newton had formulated the fundamental laws of the physical word." LORD LLOYD OF HAMSTED & M.D.A. FREEMAN, LLOYD'S INTRODUCTION TO JURISPRUDENCE 206 (6th ed. 1994).
153. Craswell cited Ian Ayres & Robert Gertner, Filling Gaps in Incomplete Contacts: An Economic Theory of Default Rules, 99 YALE L.J. 87 (1989), and Symposium on Default Rules and Contractual Consent, 3 S. CAL INTERDISC. L.J. 1 (1994), as examples of scholarship written from a microeconomic perspective that focuses on the incentives created by Contract remedial schemes. Craswell, supra note 30 at 107 n.30 Though there are many other examples of such consequentialist theory, two articles by Charles Goetz and Robert Scott perhaps best capture the tenor of the law and economics perspective insofar as it supports a fundamental theory of Contract. See Charles J. Goetz & Robert E. Scott, The Mitigalion Principle: Toward a General Theory of Contractual Obligation, 69 VA. L. REV. 967 (1983), Goetz & Scott, supra note 4. The foundation of positive economic theory is Jeremy Bentham's "principle of the greatest happiness of the greatest number, and [Bentham] sought to make himself the Newton of the legal and moral world by establishing the principles of an experimental science governing tha sphere, much as Newton had formulated the fundamental laws of the physical word." LORD LLOYD OF HAMSTED & M.D.A. FREEMAN, LLOYD'S INTRODUCTION TO JURISPRUDENCE 206 (6th ed. 1994).
154. Craswell described the Contractualists as subscribing to "the premise that just or moral rules consist of those rules to which all parties could agree under some sort of deal circumstances Craswell supra note 35, at 111. See JOHN RAWLS, A THEORY OF JUSTICE (1971) ("veil of ignorance"). T.M. SCANLON, WHAT WE OWE TO EACH OTHER (1998) was formulated by Craswell as asking "what a reasonable moral agent could consent to, or what ruless could be justifled even to those who find themselves disadvantaged by the rule in any particular instance." Craswell, supra note 35, at 112 (emphases in original). See also Thomas Scanlon, Promises and Practices, 19 PHIL. & PUB. AFFAIRS 199 (1990) (considering circumstances under which promises ought to bind).
155. Craswell described the Contractualists as subscribing to "the premise that just or moral rules consist of those rules to which all parties could agree under some sort of deal circumstances Craswell supra note 35, at 111. See JOHN RAWLS, A THEORY OF JUSTICE (1971) ("veil of ignorance"). T.M. SCANLON, WHAT WE OWE TO EACH OTHER (1998) was formulated by Craswell as asking "what a reasonable moral agent could consent to, or what ruless could be justifled even to those who find themselves disadvantaged by the rule in any particular instance." Craswell, supra note 35, at 112 (emphases in original). See also Thomas Scanlon, Promises and Practices, 19 PHIL. & PUB. AFFAIRS 199 (1990) (considering circumstances under which promises ought to bind).
156. Craswell described the Contractualists as subscribing to "the premise that just or moral rules consist of those rules to which all parties could agree under some sort of deal circumstances Craswell supra note 35, at 111. See JOHN RAWLS, A THEORY OF JUSTICE (1971) ("veil of ignorance"). T.M. SCANLON, WHAT WE OWE TO EACH OTHER (1998) was formulated by Craswell as asking "what a reasonable moral agent could consent to, or what ruless could be justifled even to those who find themselves disadvantaged by the rule in any particular instance." Craswell, supra note 35, at 112 (emphases in original). See also Thomas Scanlon, Promises and Practices, 19 PHIL. & PUB. AFFAIRS 199 (1990) (considering circumstances under which promises ought to bind).
157. The authorities cited by Craswell in support of the retributive and expressive goals perspectives in the Contracts damages literature include William S. Dodge, The Case for Punitive Damages in Contracts 48 DUKE L.J. 629 (1999); Steven B. Katz, The California Tort of Bad Faith Breach, the Dissent in Seaman's v. Standard Oil, and the Role of Punitive Damages in Contract Doctrine 60 S. CAL. L. REV. 509 (1987); Patricia H. Marschall, Willfulness: A Crucial Factor in Choosing Remedies for Breach of Contract, 24 ARIZ. L. REV. 733 (1982). Craswell, supra note 35, at 116 n.65. Craswell cited CHARLES FRIED, CONTRACT AS PROMISE: A THEORY OF CONTRACTUAL OBLIGATION (1981); Jeffrey L. Harrison, A Case for Loss-Sharing, 56 S. CAL. L. REV. 573 (1983) (focusing on excused performance); Robert E. Hudec, Restating the "Reliance interest," 67 CORNELL L. REV. 704 (1982) (reliance based damage calculus); Leon E. Trakman, Winner Take Some: Loss Sharing and Commercial Impracticability 69 MINN. L. REV. 471 (1985); W.F. Young, Half Measures, 81 COLUM. L. REV. 19 (1981), in support that "some scholars have argued that a breacher's liability shoud be reduced in cases where the nonbreacher was at least partmlly at fault." Craswell, supra note 35 at 117 n.67; see also James Gordley, Enforcing Promises, 82 CAL. L. REV. 547 (1995) (imposition of Aristotelian theory to achieve "justice").
158. The authorities cited by Craswell in support of the retributive and expressive goals perspectives in the Contracts damages literature include William S. Dodge, The Case for Punitive Damages in Contracts 48 DUKE L.J. 629 (1999); Steven B. Katz, The California Tort of Bad Faith Breach, the Dissent in Seaman's v. Standard Oil, and the Role of Punitive Damages in Contract Doctrine 60 S. CAL. L. REV. 509 (1987); Patricia H. Marschall, Willfulness: A Crucial Factor in Choosing Remedies for Breach of Contract, 24 ARIZ. L. REV. 733 (1982). Craswell, supra note 35, at 116 n.65. Craswell cited CHARLES FRIED, CONTRACT AS PROMISE: A THEORY OF CONTRACTUAL OBLIGATION (1981); Jeffrey L. Harrison, A Case for Loss-Sharing, 56 S. CAL. L. REV. 573 (1983) (focusing on excused performance); Robert E. Hudec, Restating the "Reliance interest," 67 CORNELL L. REV. 704 (1982) (reliance based damage calculus); Leon E. Trakman, Winner Take Some: Loss Sharing and Commercial Impracticability 69 MINN. L. REV. 471 (1985); W.F. Young, Half Measures, 81 COLUM. L. REV. 19 (1981), in support that "some scholars have argued that a breacher's liability shoud be reduced in cases where the nonbreacher was at least partmlly at fault." Craswell, supra note 35 at 117 n.67; see also James Gordley, Enforcing Promises, 82 CAL. L. REV. 547 (1995) (imposition of Aristotelian theory to achieve "justice").
159. The authorities cited by Craswell in support of the retributive and expressive goals perspectives in the Contracts damages literature include William S. Dodge, The Case for Punitive Damages in Contracts 48 DUKE L.J. 629 (1999); Steven B. Katz, The California Tort of Bad Faith Breach, the Dissent in Seaman's v. Standard Oil, and the Role of Punitive Damages in Contract Doctrine 60 S. CAL. L. REV. 509 (1987); Patricia H. Marschall, Willfulness: A Crucial Factor in Choosing Remedies for Breach of Contract, 24 ARIZ. L. REV. 733 (1982). Craswell, supra note 35, at 116 n.65. Craswell cited CHARLES FRIED, CONTRACT AS PROMISE: A THEORY OF CONTRACTUAL OBLIGATION (1981); Jeffrey L. Harrison, A Case for Loss-Sharing, 56 S. CAL. L. REV. 573 (1983) (focusing on excused performance); Robert E. Hudec, Restating the "Reliance interest," 67 CORNELL L. REV. 704 (1982) (reliance based damage calculus); Leon E. Trakman, Winner Take Some: Loss Sharing and Commercial Impracticability 69 MINN. L. REV. 471 (1985); W.F. Young, Half Measures, 81 COLUM. L. REV. 19 (1981), in support that "some scholars have argued that a breacher's liability shoud be reduced in cases where the nonbreacher was at least partmlly at fault." Craswell, supra note 35 at 117 n.67; see also James Gordley, Enforcing Promises, 82 CAL. L. REV. 547 (1995) (imposition of Aristotelian theory to achieve "justice").
160. The authorities cited by Craswell in support of the retributive and expressive goals perspectives in the Contracts damages literature include William S. Dodge, The Case for Punitive Damages in Contracts 48 DUKE L.J. 629 (1999); Steven B. Katz, The California Tort of Bad Faith Breach, the Dissent in Seaman's v. Standard Oil, and the Role of Punitive Damages in Contract Doctrine 60 S. CAL. L. REV. 509 (1987); Patricia H. Marschall, Willfulness: A Crucial Factor in Choosing Remedies for Breach of Contract, 24 ARIZ. L. REV. 733 (1982). Craswell, supra note 35, at 116 n.65. Craswell cited CHARLES FRIED, CONTRACT AS PROMISE: A THEORY OF CONTRACTUAL OBLIGATION (1981); Jeffrey L. Harrison, A Case for Loss-Sharing, 56 S. CAL. L. REV. 573 (1983) (focusing on excused performance); Robert E. Hudec, Restating the "Reliance interest," 67 CORNELL L. REV. 704 (1982) (reliance based damage calculus); Leon E. Trakman, Winner Take Some: Loss Sharing and Commercial Impracticability 69 MINN. L. REV. 471 (1985); W.F. Young, Half Measures, 81 COLUM. L. REV. 19 (1981), in support that "some scholars have argued that a breacher's liability shoud be reduced in cases where the nonbreacher was at least partmlly at fault." Craswell, supra note 35 at 117 n.67; see also James Gordley, Enforcing Promises, 82 CAL. L. REV. 547 (1995) (imposition of Aristotelian theory to achieve "justice").
161. The authorities cited by Craswell in support of the retributive and expressive goals perspectives in the Contracts damages literature include William S. Dodge, The Case for Punitive Damages in Contracts 48 DUKE L.J. 629 (1999); Steven B. Katz, The California Tort of Bad Faith Breach, the Dissent in Seaman's v. Standard Oil, and the Role of Punitive Damages in Contract Doctrine 60 S. CAL. L. REV. 509 (1987); Patricia H. Marschall, Willfulness: A Crucial Factor in Choosing Remedies for Breach of Contract, 24 ARIZ. L. REV. 733 (1982). Craswell, supra note 35, at 116 n.65. Craswell cited CHARLES FRIED, CONTRACT AS PROMISE: A THEORY OF CONTRACTUAL OBLIGATION (1981); Jeffrey L. Harrison, A Case for Loss-Sharing, 56 S. CAL. L. REV. 573 (1983) (focusing on excused performance); Robert E. Hudec, Restating the "Reliance interest," 67 CORNELL L. REV. 704 (1982) (reliance based damage calculus); Leon E. Trakman, Winner Take Some: Loss Sharing and Commercial Impracticability 69 MINN. L. REV. 471 (1985); W.F. Young, Half Measures, 81 COLUM. L. REV. 19 (1981), in support that "some scholars have argued that a breacher's liability shoud be reduced in cases where the nonbreacher was at least partmlly at fault." Craswell, supra note 35 at 117 n.67; see also James Gordley, Enforcing Promises, 82 CAL. L. REV. 547 (1995) (imposition of Aristotelian theory to achieve "justice").
162. The authorities cited by Craswell in support of the retributive and expressive goals perspectives in the Contracts damages literature include William S. Dodge, The Case for Punitive Damages in Contracts 48 DUKE L.J. 629 (1999); Steven B. Katz, The California Tort of Bad Faith Breach, the Dissent in Seaman's v. Standard Oil, and the Role of Punitive Damages in Contract Doctrine 60 S. CAL. L. REV. 509 (1987); Patricia H. Marschall, Willfulness: A Crucial Factor in Choosing Remedies for Breach of Contract, 24 ARIZ. L. REV. 733 (1982). Craswell, supra note 35, at 116 n.65. Craswell cited CHARLES FRIED, CONTRACT AS PROMISE: A THEORY OF CONTRACTUAL OBLIGATION (1981); Jeffrey L. Harrison, A Case for Loss-Sharing, 56 S. CAL. L. REV. 573 (1983) (focusing on excused performance); Robert E. Hudec, Restating the "Reliance interest," 67 CORNELL L. REV. 704 (1982) (reliance based damage calculus); Leon E. Trakman, Winner Take Some: Loss Sharing and Commercial Impracticability 69 MINN. L. REV. 471 (1985); W.F. Young, Half Measures, 81 COLUM. L. REV. 19 (1981), in support that "some scholars have argued that a breacher's liability shoud be reduced in cases where the nonbreacher was at least partmlly at fault." Craswell, supra note 35 at 117 n.67; see also James Gordley, Enforcing Promises, 82 CAL. L. REV. 547 (1995) (imposition of Aristotelian theory to achieve "justice").
163. The authorities cited by Craswell in support of the retributive and expressive goals perspectives in the Contracts damages literature include William S. Dodge, The Case for Punitive Damages in Contracts 48 DUKE L.J. 629 (1999); Steven B. Katz, The California Tort of Bad Faith Breach, the Dissent in Seaman's v. Standard Oil, and the Role of Punitive Damages in Contract Doctrine 60 S. CAL. L. REV. 509 (1987); Patricia H. Marschall, Willfulness: A Crucial Factor in Choosing Remedies for Breach of Contract, 24 ARIZ. L. REV. 733 (1982). Craswell, supra note 35, at 116 n.65. Craswell cited CHARLES FRIED, CONTRACT AS PROMISE: A THEORY OF CONTRACTUAL OBLIGATION (1981); Jeffrey L. Harrison, A Case for Loss-Sharing, 56 S. CAL. L. REV. 573 (1983) (focusing on excused performance); Robert E. Hudec, Restating the "Reliance interest," 67 CORNELL L. REV. 704 (1982) (reliance based damage calculus); Leon E. Trakman, Winner Take Some: Loss Sharing and Commercial Impracticability 69 MINN. L. REV. 471 (1985); W.F. Young, Half Measures, 81 COLUM. L. REV. 19 (1981), in support that "some scholars have argued that a breacher's liability shoud be reduced in cases where the nonbreacher was at least partmlly at fault." Craswell, supra note 35 at 117 n.67; see also James Gordley, Enforcing Promises, 82 CAL. L. REV. 547 (1995) (imposition of Aristotelian theory to achieve "justice").
164. The authorities cited by Craswell in support of the retributive and expressive goals perspectives in the Contracts damages literature include William S. Dodge, The Case for Punitive Damages in Contracts 48 DUKE L.J. 629 (1999); Steven B. Katz, The California Tort of Bad Faith Breach, the Dissent in Seaman's v. Standard Oil, and the Role of Punitive Damages in Contract Doctrine 60 S. CAL. L. REV. 509 (1987); Patricia H. Marschall, Willfulness: A Crucial Factor in Choosing Remedies for Breach of Contract, 24 ARIZ. L. REV. 733 (1982). Craswell, supra note 35, at 116 n.65. Craswell cited CHARLES FRIED, CONTRACT AS PROMISE: A THEORY OF CONTRACTUAL OBLIGATION (1981); Jeffrey L. Harrison, A Case for Loss-Sharing, 56 S. CAL. L. REV. 573 (1983) (focusing on excused performance); Robert E. Hudec, Restating the "Reliance interest," 67 CORNELL L. REV. 704 (1982) (reliance based damage calculus); Leon E. Trakman, Winner Take Some: Loss Sharing and Commercial Impracticability 69 MINN. L. REV. 471 (1985); W.F. Young, Half Measures, 81 COLUM. L. REV. 19 (1981), in support that "some scholars have argued that a breacher's liability shoud be reduced in cases where the nonbreacher was at least partmlly at fault." Craswell, supra note 35 at 117 n.67; see also James Gordley, Enforcing Promises, 82 CAL. L. REV. 547 (1995) (imposition of Aristotelian theory to achieve "justice").
165. The authorities cited by Craswell in support of the retributive and expressive goals perspectives in the Contracts damages literature include William S. Dodge, The Case for Punitive Damages in Contracts 48 DUKE L.J. 629 (1999); Steven B. Katz, The California Tort of Bad Faith Breach, the Dissent in Seaman's v. Standard Oil, and the Role of Punitive Damages in Contract Doctrine 60 S. CAL. L. REV. 509 (1987); Patricia H. Marschall, Willfulness: A Crucial Factor in Choosing Remedies for Breach of Contract, 24 ARIZ. L. REV. 733 (1982). Craswell, supra note 35, at 116 n.65. Craswell cited CHARLES FRIED, CONTRACT AS PROMISE: A THEORY OF CONTRACTUAL OBLIGATION (1981); Jeffrey L. Harrison, A Case for Loss-Sharing, 56 S. CAL. L. REV. 573 (1983) (focusing on excused performance); Robert E. Hudec, Restating the "Reliance interest," 67 CORNELL L. REV. 704 (1982) (reliance based damage calculus); Leon E. Trakman, Winner Take Some: Loss Sharing and Commercial Impracticability 69 MINN. L. REV. 471 (1985); W.F. Young, Half Measures, 81 COLUM. L. REV. 19 (1981), in support that "some scholars have argued that a breacher's liability shoud be reduced in cases where the nonbreacher was at least partmlly at fault." Craswell, supra note 35 at 117 n.67; see also James Gordley, Enforcing Promises, 82 CAL. L. REV. 547 (1995) (imposition of Aristotelian theory to achieve "justice").
166. Craswell cited most prominently as an exemplar of this perspective Duncan Kennedy, Distributive and Paternalistic Motives in Contract and Tort Law, with Special Reference to Compulsory Terms and Unequal Bargaining Power, 41 MD. L. REV. 563 (1982). Craswell, supra note 35, at 119 n.73.
167. Fuller and Perdue's reliance on Aristotelian conceptions of distributive justice provide the illustration of this fundamental theory of Contract, Craswell, supra note 35, at 122-28. It is not clear that Fuller and Perdue pursue that line of analysis and argument in any substantial way, see Alces, supra note 11, at 162, but for present purposes it suffices to note that the distributional justice perspective provides the type of foundational theory of Contract that confirms the inevitability of the scientific inquiry in determining why promises (should) bind. For the argument that Fuller and Perdue advocate a distributive perspective in the Reliance Interest article, see Todd D. Rakoff, Fuller and Perdue's The Reliance Interest as a Work of Legal Scholarship, 1991 WIS. L. REV. 203.
168. Craswell did not specifically attribute a capitalist value system to any particular Contracts theorist's assertion of a fundamental basis of Contract. He suggested the coincidence between the award of expectation damages and capitalistic free market conceptions: The only other theory that has even been suggested by modem scholars is one that attaches ideological significance to the
169. Craswell concluded that the approaches of Duncan Kennedy and Charles Fried formulate a socialist foundation of Contract. Craswell, supra note 35, at 131-33 (citing Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685 (1976); FRIED, supra note 12).
170. See supra note 11.
171. TREBILCOCK, supra note 8.
172. Trebilcock discusses "The Choice of Optimal Legal Framework for Regulating Surrogacy Contracts": Commissioning parents are now bearing a risk that they would not bear in the absence of a right of repudiation and are likely to discount the surrogacy fee offered accordingly. They are also likely to re-apportion payments from the pre-delivery period to the delivery juncture to induce waivers of the right of repudiation; as the Coase theorem in law and economics would predict, in many contexts parties will attempt to bargain around constraints the legal system imposes on them. However, making the two sides of the exchange more simultaneous arguably confronts the birth mother with a more reasoned choice. Id. at 54 (citing Ronald Coase, The Problem of Social Costs, 3 J.L. & ECON. 1 (1960)). Interestingly, though, even when Trebilcock approached diverse Contract contexts as presenting value matrices sufficiently distinguishable to require results not reconcilable by the application of mechanical Contract rules, he demonstrated that, at least in some settings, efficiency criteria cannot rationalize the resolution of difficult cases. When Trebilcock considered the hypothetical case of a single mother who "agrees" to become the mistress of a wealthy suitor in return for the suitor's payment of expensive medical care for her child, he was unable to find in the economics literature a source of decision that completely displaces a "moral base-line approach." Id. at 91. In fact, he acknowledged that in an array of recurring, albeit relatively marginal, contexts, "to enforce transactions . . . is likely to violate basic notions of human dignity and self-respect." Id.
173. Consideration doctrine provides an example of a fixed rule that operates inconsistently in varied rational and emotional contexts. Consider Duncan Kennedy's formulation of Lon Fuller's conclusions regarding consideration: According to Fuller, consideration was a doctrine that served different purposes. It was indeed a form (like the seal, the requirement of an acceptance to make a contract, the parol evidence rule, or the statute of frauds) and could be assessed as a form in terms of the functions of formalities. But it was also a substantive restriction on freedom of contract, justified by the functional reasons for refusing to enforce particular kinds of promises. Duncan Kennedy, From the Will Theory to the Principle of Private Autonomy: Lon Fuller's "Consideration and Form," 100 COLUM. L. REV. 94, 103 (2000). Kennedy also observed, following Fuller, that the consideration doctrine works more or less well depending upon the context into which its operation is introduced. The more the doctrine's application is invoked in a manner consistent with its fundamental formal and substantive objects, the more effective consideration is to vindicate the rational and emotional reactions to promise enforcement. Kennedy formulated Fuller's Consideration and Form in these terms: Viewing consideration doctrine as a formality, we ask the extent to which, in any given situation, it promotes the evidentiary, cautionary, and channeling functions Fuller peremptorily assigns to formalities. Viewing the doctrine as a restriction on freedom of contract, we ask whether the restriction confines enforcement appropriately, given the goals of securing private autonomy, compensating reliance, and preventing unjust enrichment. A striking move in the article is to ask (with respect to consideration viewed as a formality) to what extent the "nature of the situation" allows accurate fact-finding ex post, cautions people ex ante, and clearly distinguishes the moment when we pass from merely moral to legally binding obligation. Id. It seems that consideration, the doctrine, is a shorthand for some thing or things more fundamental, at least in terms of Kennedy's construction of Fuller, which is a fair one so far as it goes.
174. See Leiter, Naturalism, supra note 96; Leiter, Rethinking, supra note 96.
175. See Leiter, Naturalism, supra note 96; Leiter, Rethinking, supra note 96.
176. Leiter, Rethinking, supra note 96. The Realists came of intellectual age in a positivistic and naturalistic culture, and their approach to jurisprudential questions bears the mark ofthat origin. With the benefit of philosophical advances of the last thirty years, we are finally in a position to recognize what most jurisprudents have missed: that the Realists were not bad legal philosophers, but rather prescient ones, philosophical naturalists before their time. Id. at 315. It may be, then, that the analysis and argument of this Article is Realistic jurisprudence in a philosophical naturalist's vein. Leiter and the Realists for the most part were positing a theory of adjudication - how and why courts decide cases the way they do. The object of this Article is, at least, once removed. This study imposes principles of inquiry and order drawn from the natural sciences (like philosophical naturalism) to learn more about the substance of and relationship among the doctrines that comprise the Contract law. It provides the step that is a necessary predicate of a theory of adjudication, a means both to study how values, principles, and rules in Contract interact in fact and how conceptions of them might be recast to make them more effective (ultimately transparent) components of a system of Contract, including Contract as a system of adjudication.
177. Leiter recited several philosophers' formulations of "naturalism." Leiter, Naturalism, supra note 96, at 80-81. Two in particular capture well the sense of the term that best supports the thesis urged here: [N]aturalism . . [is] not just the view that man can be seen as part of nature - in one sense or another this would surely be accepted by everyone - but that the nature of which he is a part is to be understood according to the canons which emerged in the seventeenth-century revolution in natural science. Id. at 81 (citing CHARLES TAYLOR, HUMAN AGENCY AND LANGUAGE 2 (1985)). "The [naturalistic] idea is to make sure that our philosophical theories are compatible with science. . . . [T]his means that in our philosophical theories we are to make use only of those properties that are either reducible to or supervene upon properties that science countenances. . . . Science constrains philosophy." Id. (citing Richard Foley, Quine and Naturalized Epistemology, 19 MIDWEST STUD. IN PHIL. 243, 243 (1994)).
178. Leiter recited several philosophers' formulations of "naturalism." Leiter, Naturalism, supra note 96, at 80-81. Two in particular capture well the sense of the term that best supports the thesis urged here: [N]aturalism . . [is] not just the view that man can be seen as part of nature - in one sense or another this would surely be accepted by everyone - but that the nature of which he is a part is to be understood according to the canons which emerged in the seventeenth-century revolution in natural science. Id. at 81 (citing CHARLES TAYLOR, HUMAN AGENCY AND LANGUAGE 2 (1985)). "The [naturalistic] idea is to make sure that our philosophical theories are compatible with science. . . . [T]his means that in our philosophical theories we are to make use only of those properties that are either reducible to or supervene upon properties that science countenances. . . . Science constrains philosophy." Id. (citing Richard Foley, Quine and Naturalized Epistemology, 19 MIDWEST STUD. IN PHIL. 243, 243 (1994)).
179. Leiter recited several philosophers' formulations of "naturalism." Leiter, Naturalism, supra note 96, at 80-81. Two in particular capture well the sense of the term that best supports the thesis urged here: [N]aturalism . . [is] not just the view that man can be seen as part of nature - in one sense or another this would surely be accepted by everyone - but that the nature of which he is a part is to be understood according to the canons which emerged in the seventeenth-century revolution in natural science. Id. at 81 (citing CHARLES TAYLOR, HUMAN AGENCY AND LANGUAGE 2 (1985)). "The [naturalistic] idea is to make sure that our philosophical theories are compatible with science. . . . [T]his means that in our philosophical theories we are to make use only of those properties that are either reducible to or supervene upon properties that science countenances. . . . Science constrains philosophy." Id. (citing Richard Foley, Quine and Naturalized Epistemology, 19 MIDWEST STUD. IN PHIL. 243, 243 (1994)).
180. Leiter, Naturalism, supra note 96, at 81.
181. Id. at 82.
182. Id. (citing ALLAN GIBBARD, WISE CHOICES, APT FEELINGS: A THEORY OF NORMATIVE JUDGMENT (1990); Peter Railton, Moral Realism, 95 PHIL. REV. 163 (1986)). Several recent articles have posited an evolutionary biology perspective in recurring legal contexts. See. e.g., Owen Jones, Sex, Culture, and the Biology of Rape: Toward Explanation and Prevention, 87 CALIF. L. REV. 827 (1999); Ryan M.T. Iwasaka, Note, From Chakrabarty to Chimeras: The Growing Need for Evolutionary Biology in Patent Law, 109 YALE L.J. 1505 (2000). To the extent that Hard and Soft Methodological Naturalism describe points on a continuum, we may also imagine that a science, any science, is in a constant state of "development" along that continuum. That is, yesterday's soft methodology may "firm up," if you will, to the point where it becomes a hard methodology. It is ultimately a matter of gaining control of variables, eliminating noise, and thereby progressively diminishing the dissonance between subject and object until we can make more accurate approximations of the reality that is the subject of the "science."
183. Id. (citing ALLAN GIBBARD, WISE CHOICES, APT FEELINGS: A THEORY OF NORMATIVE JUDGMENT (1990); Peter Railton, Moral Realism, 95 PHIL. REV. 163 (1986)). Several recent articles have posited an evolutionary biology perspective in recurring legal contexts. See. e.g., Owen Jones, Sex, Culture, and the Biology of Rape: Toward Explanation and Prevention, 87 CALIF. L. REV. 827 (1999); Ryan M.T. Iwasaka, Note, From Chakrabarty to Chimeras: The Growing Need for Evolutionary Biology in Patent Law, 109 YALE L.J. 1505 (2000). To the extent that Hard and Soft Methodological Naturalism describe points on a continuum, we may also imagine that a science, any science, is in a constant state of "development" along that continuum. That is, yesterday's soft methodology may "firm up," if you will, to the point where it becomes a hard methodology. It is ultimately a matter of gaining control of variables, eliminating noise, and thereby progressively diminishing the dissonance between subject and object until we can make more accurate approximations of the reality that is the subject of the "science."
184. Id. (citing ALLAN GIBBARD, WISE CHOICES, APT FEELINGS: A THEORY OF NORMATIVE JUDGMENT (1990); Peter Railton, Moral Realism, 95 PHIL. REV. 163 (1986)). Several recent articles have posited an evolutionary biology perspective in recurring legal contexts. See. e.g., Owen Jones, Sex, Culture, and the Biology of Rape: Toward Explanation and Prevention, 87 CALIF. L. REV. 827 (1999); Ryan M.T. Iwasaka, Note, From Chakrabarty to Chimeras: The Growing Need for Evolutionary Biology in Patent Law, 109 YALE L.J. 1505 (2000). To the extent that Hard and Soft Methodological Naturalism describe points on a continuum, we may also imagine that a science, any science, is in a constant state of "development" along that continuum. That is, yesterday's soft methodology may "firm up," if you will, to the point where it becomes a hard methodology. It is ultimately a matter of gaining control of variables, eliminating noise, and thereby progressively diminishing the dissonance between subject and object until we can make more accurate approximations of the reality that is the subject of the "science."
185. Id. (citing ALLAN GIBBARD, WISE CHOICES, APT FEELINGS: A THEORY OF NORMATIVE JUDGMENT (1990); Peter Railton, Moral Realism, 95 PHIL. REV. 163 (1986)). Several recent articles have posited an evolutionary biology perspective in recurring legal contexts. See. e.g., Owen Jones, Sex, Culture, and the Biology of Rape: Toward Explanation and Prevention, 87 CALIF. L. REV. 827 (1999); Ryan M.T. Iwasaka, Note, From Chakrabarty to Chimeras: The Growing Need for Evolutionary Biology in Patent Law, 109 YALE L.J. 1505 (2000). To the extent that Hard and Soft Methodological Naturalism describe points on a continuum, we may also imagine that a science, any science, is in a constant state of "development" along that continuum. That is, yesterday's soft methodology may "firm up," if you will, to the point where it becomes a hard methodology. It is ultimately a matter of gaining control of variables, eliminating noise, and thereby progressively diminishing the dissonance between subject and object until we can make more accurate approximations of the reality that is the subject of the "science."
186. Leiter, Naturalism, supra note 96, at 83 (footnotes omitted).
187. Id.
188. Id. [A] semantic S[ubstantive] Naturalist might try to argue that legal predicates (for example, the predicate 'being liable for negligence') are explicable in terms amenable to empirical inquiry. An ontological S[ubstantive] Naturalist might try to reduce legal facts (for example, the fact of 'being liable for negligence') to certain physical facts. Neither program strikes me as very promising (for obvious reasons), which suggests that the S[ubstantive] Naturalism which is so prevalent in philosophy of mind and meta-ethics may be the wrong naturalistic program for legal philosophy. Id. at 92.
189. By "our current plateau of understanding" I mean the state of the so-called "hard sciences" that endeavor to reveal the constituents of the determinism that causes actors to behave as they do. By "level of generality" I mean the size of the sample whose behavior we would want the law to determine. We might want our jurisprudence of adjudication to describe how judges decide cases as they do and, concomitantly, to thereby reveal ways in which we could channel judges' decisions to realize particular objects.
190. At this juncture, it does not matter how we might distinguish the first group of promises from the second; all that matters is that we can divide the world of promises into those two categories and then use a rule of consideration to signal to triers of law how that distinction should be respected.
191. Also, for the purposes of this portion of the argument, we do not need to take account of the fact that judges decide cases for reasons other than those that they offer in support of their conclusions. It is not necessary to deny that obvious truth in order to make the point that there is an obstacle to subject-object reconciliation even in cases in which the trier of fact wants to give effect to the object of the apposite rule. Before it would even be worthwhile to address that instance of potential dissonance so far as adjudication is concerned, we would have to come to terms with the single constituent problem: How to craft the formulation of the rule so that it is consistent with the principle that vindicates the fundamental value.
192. Leiter, supra note 96, at 85.
193. See LORD LLOYD OF HAMSTED & FREEMAN, supra note 119, at 12-14.
194. HILARY KORNBLITH, NATURALIZING EPISTEMOLOGY 4 (1994).
195. Leiter, Naturalism, supra note 96, at 86-87.
196. In Leiter's terms, the "legal reasons and judicial decision" relata standing in a "justificatory relation," are akin to the subject-object dissonance that is the province of science as conceived here. Consider: Theories of adjudication are concerned not with the relationship between 'evidence' and 'scientific theory,' but rather with the justificatory relationship between 'legal reasons' (the input, as it were) ['object,' in scientific terminology] and judicial decision (the output) ['subject']: theories of adjudication try to tell judges how they ought to justify their decisions, that is, they seek to 'ground' judicial decision-making in reasons that require unique outcomes. The Realists are 'anti-foundationalists' about judicial decisions in the sense that they deny that the legal reasons justify a unique decision: the legal reasons underdetermine the decision (at least in most cases actually litigated). More precisely, the Realists claim that the law is rationally indeterminate in the sense that the class of legal reasons - that is, the class of legitimate reasons a judge may offer for a decision - does not provide a justification for a unique outcome. Just as sensory input does not justify a unique scientific theory, so legal reasons, according to the Realists, do not justify a unique decision. Leiter, Naturalism, supra note 96, at 93.
197. "I . . . argue that if we take seriously the doctrine that the aim of science (and of all intellectual inquiry, for that matter) is the resolution or clarification of problems, then we shall have a very different picture of the historical evolution and the cognitive evaluation of science." LAUDEN, supra note 106, at 12. That argument may not have been revolutionary. Kuhn had already recognized that "[p]aradigms gain their status because they are more successful than their competitors in solving a few problems that the group of practitioners has come to recognize as acute." KUHN, supra note 106, at 23.
198. KUHN, supra note 106. Galileo's contributions to the study of motion depended closely upon difficulties discovered in Aristotle's theory by scholastic critics. Newton's new theory of light and color originated in the discovery that none of the existing pre-paradigm theories would account for the length of the spectrum, and the wave theory that replaced Newton's was announced in the midst of growing concern about anomalies in the relation of diffraction and polarization effects to Newton's theory. Thermodynamics was bom from the collision of two existing nineteenth-century physical theories, and quantum mechanics from a variety of difficulties surrounding black-body radiation, specific heats, and the photoelectric effect. Id. at 67.
199. Id.
200. "[Scientific revolutionaries] shared two essential characteristics. Their achievement was sufficiently unprecedented to attract an enduring group of adherents away from competing modes of scientific activity. Simultaneously, it was sufficiently open-ended to leave all sorts of problems for the redefined group of practitioners to resolve." Id. at 10. Achievements that share these two characteristics I shall henceforth refer to as "paradigms," a term that relates closely to "normal science." It is paradigm that structures scientific inquiry, much as it is legal doctrine, say, the "bargain" requirement, that structures legal discourse. What, at first blush, distinguishes the two areas of inquiry would be the sense of precision: Both "gravity" and "bargain" are labels for phenomena rather than explanations for the relationships they describe. We may not know what gravity is, but we have no trouble finding its manifestations. Conversely, we may think we know what bargain is but we have more trouble agreeing upon its manifestations. In both instances, though, we use the terms to practice science, that is, to reduce subject-object dissonance. Gravity describes two bodies' attraction; bargain describes when a promise binds. Were it not for paradigms, we could not develop concepts because all we would have would be masses of data without an organizing principle to define their interrelation: "In the absence of a paradigm or some candidate for paradigm, all of the facts that could possibly pertain to the development of a given science are likely to seem equally relevant." Id. at 15. "[E]xisting theory . . . predict[s] factual information of intrinsic value." Id. at 30. A corollary of that observation might be that theory also restricts the factual information deemed to be of intrinsic value.
201. See HOYNINGEN-HUENE, supra note 5, at 141-43; Imre Lakatos, Falsification and the Methodology of Scientific Research Programmes, in CRITICISM AND THE GROWTH OF KNOWLEDGE 91 (Imre Lakatos & Alan Musgrave eds., 1970); LAUDAN, supra note 106, at 73-76.
202. KUHN, supra note 106, at 68.
203. Id. at 80.
204. See. e.g., LAUDAN, supra note 106, at 73-76.
205. Id. at 23.
206. Id. at 68.
207. LAUDAN, supra note 106, at 86-87. Laudan offered an example that captures well the Contract parallel: A classic example of this process is offered by nineteenth-century phenomenological chemistry Scientists in this tradition argued that the only legitimate problems to be solved by the chemist were those which concerned the observable relations of chemical reagents. Thus, to ask how this acid and this base react to form this salt is to pose an authentic problem. But to ask how atoms combine to form diatomic molecules cannot conceivably count as an empirical problem because the methodology of the research tradition denies the possibility of empirical knowledge of entities tne size or atoms and molecules. Id. at 87.
208. HOYNINGEN-HUENE, supra note 5, at 67-68 n.12 (citing and quoting G.W.F HEGEL THE PHENOMENOLOGY OF SPIRIT 49-50 (A.V. Miller trans., 1977)).
209. Craswell, supra note 11, at 491.
210. See supra note 34.
211. KUHN, supra note 106, at 44.
212. This, at least, is a popular conception. See P.S. ATIYAH, PROMISES, MORALS, AND LAW (1981); FARNSWORTH, supra note 10; Fuller & Perdue, supra note 18; see also S. Toulmin, Does the Distinction Between Normal and Revolutionary Science Hold Water?, in CRITICISM AND THE GROWTH OF KNOWLEDGE 39, 40 (1970).
213. This, at least, is a popular conception. See P.S. ATIYAH, PROMISES, MORALS, AND LAW (1981); FARNSWORTH, supra note 10; Fuller & Perdue, supra note 18; see also S. Toulmin, Does the Distinction Between Normal and Revolutionary Science Hold Water?, in CRITICISM AND THE GROWTH OF KNOWLEDGE 39, 40 (1970).
214. LAUDAN, supra note 106, at 155
215. Id. at 26.
216. P.S. ATIYAH, THE RISE AND FALL OF FREEDOM OF CONTRACT 53 (1979).
217. RESTATEMENT (SECOND) OF CONTRACTS § 3 (1981). "[A]greement," in turn, is defined as "a manifestation of mutual assent on the part of two or more persons." Id.
218. Kuhn's 1969 Postscript made that point vividly in the context of the natural sciences: Notice now that two groups, the members of which have systematically different sensations on receipt of the same stimuli, do in some sense live in different worlds. . . . To the extent, of course, that individuals belong to the same group and thus share education, language, experience, and culture, we have good reason to suppose that their sensations are the same. . . . But where the differentiation and specialization of groups begins, we have no similar evidence for the immutability of sensation. Mere parochialism, I suspect, makes us suppose that the route from stimuli [object] to sensation [subject] is the same for all members of all groups. KUHN, supra note 106, at 193. Hoyningen-Huene described that as Kuhn's "critical epistemological standpoint." He explained, [f]rom the particular critical epistemological standpoint characteristic of Kuhn's theory . . . the assumption of the pure object-sidedness of . . . stimuli is no longer tenable. The premise that the world I (and other members of my community) take to be real, is, in the same way, the real world for all humans, which appeared so self-evident from the natural standpoint, is now called into question. . . . Any substantive assumption about the nature of stimuli constitutes a prejudice in favor of some particular phenomenal world (or some particular class of phenomenal worlds) and is thus to all appearances a methodological error. HOYNINGEN-HUENE, supra note 5, at 46-47. That sensory nihilism is unnerving, but does provide an explanation of intellectual tension within and across disciplines. For social scientists, who probably to an extent think of such political conflict as the determining characteristic of their discipline, it may be particularly striking to recognize that even physics, if we are to take the critical epistemological viewpoint seriously, is the product of the political forces, broadly defined, that shape all human interactions and therefore all consensus regarding subject-object dissonance.
219. HOYNINGEN-HUENE, supra note 5. On this issue, Kuhn himself claims at one point that, at least for scientists, a transcendence of one's own phenomenal world complete enough to allow an unbiased survey of all possible phenomenal worlds is impossible, though a scientist situated in a given historical context might face a choice between two possible phenomenal worlds. We must therefore conclude that Kuhn would deny the possibility of such a completely neutral standpoint for the philosopher or historian of science as well. Id. at 68 (citing Thomas S. Kuhn, Discussion in F. SUPPE (ED.), THE STRUCTURE OF SCIENTIFIC THEORIES 509 (1974)). That realization provoked Kuhn to conclude that political power has determined the course of scientific inquiry; at least that is the spin put on Kuhn's observations: "Thus, both Kuhn and Feyerabend conclude that scientific decision making is basically a political and propagandist affair, in which prestige, power, age, and polemic decisively determine the outcome of the struggle between competing theories and theorists." LAUDAN, supra note 106, at 4; cf. Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685 (1976) (treating relationship among law, individualism, and capitalism).
220. HOYNINGEN-HUENE, supra note 5. On this issue, Kuhn himself claims at one point that, at least for scientists, a transcendence of one's own phenomenal world complete enough to allow an unbiased survey of all possible phenomenal worlds is impossible, though a scientist situated in a given historical context might face a choice between two possible phenomenal worlds. We must therefore conclude that Kuhn would deny the possibility of such a completely neutral standpoint for the philosopher or historian of science as well. Id. at 68 (citing Thomas S. Kuhn, Discussion in F. SUPPE (ED.), THE STRUCTURE OF SCIENTIFIC THEORIES 509 (1974)). That realization provoked Kuhn to conclude that political power has determined the course of scientific inquiry; at least that is the spin put on Kuhn's observations: "Thus, both Kuhn and Feyerabend conclude that scientific decision making is basically a political and propagandist affair, in which prestige, power, age, and polemic decisively determine the outcome of the struggle between competing theories and theorists." LAUDAN, supra note 106, at 4; cf. Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685 (1976) (treating relationship among law, individualism, and capitalism).
221. Eisenberg, supra note 106. The work's economic analyses may be incomplete, but elaboration on that conclusion would be beyond the scope of this Article and, in any event, is not crucial to the argument here.
222. Professor Eisenberg offered a conception of bargain to support his analysis: By bargain I mean an exchange in which each party views the performance that he undertakes as the price of the performance undertaken by the other. . . . By the bargain principle, I mean the common law rule that, in the absence of a traditional defense relating to the quality of consent (such as duress, incapacity, misrepresentation, or mutual mistake), the courts will enforce a bargain according to its terms, with the object of putting a bargain-promisee in as good a position as if the bargain had been performed. Eisenberg supra note 106, at 742. For the expression of the unconscionability doctrine, Eisenberg relied on the Uniform Commercial Code § 2-302 and the RESTATEMENT (SECOND) OF CONTRACTS § 208 formulations. Id. at 750-51.
223. The hypothetical that Eisenberg built to support his discussion of the four unconscionability contexts are neither dependent on nor the product of transactional evolution that has rendered the older forms unsuitable to contemporary contexts. Evolving transactional patterns would exacerbate rule-context dissonance in ways similar to those investigated by Eisenberg but on a broader scale. That is, for example, the information asymmetries that give rise to unconscionable price ignorance may be more common as the subject matter of Contract becomes more complex, say, computer software, and the forms of contracting more expeditious, such as "point and click" contracting.
224. Perhaps, most notably, the development of promissory estoppel marks the failure of traditional bargain conceptions. See supra text accompanying notes 56-77.
225. Roy Kreitner, Speculations of Contract, or How Contract Law Stopped Worrying and Learned to Love Risk, 100 COLUM. L. REV. 1096 (2000).
226. See id. at 1096 n.l.
227. "Whether at the turn of the century or today, labeling transactions as wagers is one way to limit freedom of contract." Id. at 1098.
228. Id. at 1099.
229. Id. at 1121 (emphasis added).
230. See supra note 11.
231. And, in fact, the U.C.C. does just that. See, e.g., U.C.C § 2-205 (2000) (firm offers in the case of a merchant); U.C.C. § 2A-108(4) (2000) (special provision regarding unconscionability in consumer lease context).
232. See H.L.A. Hart, The Ascription of Responsibility and Rights, 49 PROC. ARISTOTELIAN SOC'Y (n.s.) 171 (1949); H.L.A. Hart, Definition and Theory in Jurisprudence, in ESSAYS IN JURISPRUDENCE AND PHILOSOPHY 21, 23-6 (1983), both cited in Schauer, supra note 44, at 1221 n.18, in the course of his discussion of "thick descriptions," descriptions which use words that "are not only descriptive, because, in the process of describing, the describer is also making or subscribing to a normative or evaluative claim made by someone else or by society at large." Id. at 1221 (citing PHILlPA FOOT, Moral Arguments, in VIRTUES AND VICES AND OTHER ESSAYS IN MORAL PHILOSOPHY 96 (1978); JUDITH JARVIS THOMSON, THE REALM OF RIGHTS 10-20 (1990)).
233. See H.L.A. Hart, The Ascription of Responsibility and Rights, 49 PROC. ARISTOTELIAN SOC'Y (n.s.) 171 (1949); H.L.A. Hart, Definition and Theory in Jurisprudence, in ESSAYS IN JURISPRUDENCE AND PHILOSOPHY 21, 23-6 (1983), both cited in Schauer, supra note 44, at 1221 n.18, in the course of his discussion of "thick descriptions," descriptions which use words that "are not only descriptive, because, in the process of describing, the describer is also making or subscribing to a normative or evaluative claim made by someone else or by society at large." Id. at 1221 (citing PHILlPA FOOT, Moral Arguments, in VIRTUES AND VICES AND OTHER ESSAYS IN MORAL PHILOSOPHY 96 (1978); JUDITH JARVIS THOMSON, THE REALM OF RIGHTS 10-20 (1990)).
234. See H.L.A. Hart, The Ascription of Responsibility and Rights, 49 PROC. ARISTOTELIAN SOC'Y (n.s.) 171 (1949); H.L.A. Hart, Definition and Theory in Jurisprudence, in ESSAYS IN JURISPRUDENCE AND PHILOSOPHY 21, 23-6 (1983), both cited in Schauer, supra note 44, at 1221 n.18, in the course of his discussion of "thick descriptions," descriptions which use words that "are not only descriptive, because, in the process of describing, the describer is also making or subscribing to a normative or evaluative claim made by someone else or by society at large." Id. at 1221 (citing PHILlPA FOOT, Moral Arguments, in VIRTUES AND VICES AND OTHER ESSAYS IN MORAL PHILOSOPHY 96 (1978); JUDITH JARVIS THOMSON, THE REALM OF RIGHTS 10-20 (1990)).
235. See H.L.A. Hart, The Ascription of Responsibility and Rights, 49 PROC. ARISTOTELIAN SOC'Y (n.s.) 171 (1949); H.L.A. Hart, Definition and Theory in Jurisprudence, in ESSAYS IN JURISPRUDENCE AND PHILOSOPHY 21, 23-6 (1983), both cited in Schauer, supra note 44, at 1221 n.18, in the course of his discussion of "thick descriptions," descriptions which use words that "are not only descriptive, because, in the process of describing, the describer is also making or subscribing to a normative or evaluative claim made by someone else or by society at large." Id. at 1221 (citing PHILlPA FOOT, Moral Arguments, in VIRTUES AND VICES AND OTHER ESSAYS IN MORAL PHILOSOPHY 96 (1978); JUDITH JARVIS THOMSON, THE REALM OF RIGHTS 10-20 (1990)).
236. Frederick Schauer, supra note 44, at 1221. Actually, at an extreme, it is difficult to think of very much language that is not "ascriptive" in the Hart sense or "thick" in the Foot sense, at least so far as Schauer comes to terms with those conceptions.
237. See O.W. HOLMES, THE COMMON LAW (1881). [I]t is the essence of a consideration, that, by the terms of the agreement, it is given and accepted as the motive or inducement of the promise. Conversely, the promise must be made and accepted as the conventional motive or inducement for furnishing the consideration. The root of the whole matter is the relation of reciprocal conventional inducement, each for the other, between consideration and promise. Id. at 293-94.
238. See Lon L. Fuller, Consideration and Form, 41 COLUM. L. REV. 799, 800 (1941).
239. Perhaps, even, misrepresentation. See Gordley, supra note 77, at 580.
240. RESTATEMENT (SECOND) OF CONTRACTS § 3 (1981).
241. Cf. Posner, supra note 44, at 1185 (describing incommensurability as the circumstance in which "choice depends on qualitative differences between options that cannot be reduced to vectors on a single dimension of evaluation"). Adler's definition, see supra note 44, works less well in this setting because, for the sense in which the incommensurability considered here operates in parallel conceptions of bargain, values are not implicated. But they certainly could be, and then it would be worthwhile, even necessary, to invoke Adler's alternative definitions of incommensurability. It is not necessary, though, to consider that enhanced level of complexity in order to make the point asserted in the text.
242. See supra text accompanying note 93.
243. See supra note 33.
244. For example, you and I might both agree that a particular representation of a promise should not be enforced, you because you believe that the promisor lacked capacity and I because I believe that there was not a sufficient memorandum of agreement. Similarly we could both agree that there was not a bargain in fact, you because of the timing of the responsive communications between the parties and I because the subject matter of the contract was not fixed with sufficient certainty. If all we have to label the pertinent rational unit is "promise" or "bargain," then the ascriptive nature of the terms camouflages dissonance as consonance.
245. Hill v. Gateway 2000, Inc., 105 F.3d 1147 (7th Cir. 1997).
246. See supra note 11.
247. See supra text accompanying notes 79-87.
248. See supra text accompanying notes 89-93.
249. See supra text accompanying notes 79-87.
250. See Mark Budnitz, The Finicky Computer, the Paperless Telex and the Fallible Swiss: Bank Technology and the Law, 25 B.C. L. REV. 259 (1984).
251. Evra Corp. v. Swiss Bank Corp., 673 F.2d 951, 955-56 (7th Cir. 1982).
252. Id. at 956.
253. Id. at 957.
254. See supra note 78.
255. Id.
256. Perhaps with a "cheapest cost avoider" qualification. See GUIDO CALABRESI, THE COST OF ACCIDENTS (1970).
257. See supra text accompanying notes 119-125.
258. See FARNSWORTH, supra note 10, at 45-46.
259. See id. at 38-42; see also Eric A. Posner, Law and Regret, 98 MICH. L. REV. 1468, 1470 (2000) ("The most plausible answer to the question of why promises are enforced, is that by enforcing promises, the law enables people to make commitments that they would otherwise not be able to make, and these commitments allow people to obtain good things in return (cash, services, goods).").
260. Rubin, supra note 2.
261. Id. at 527-28.
262. Id. at 525.
263. Id. at 525-26.