Category Archives: Contract

John Gardner, ‘The Twilight of Legality’

Abstract This paper argues that juridification has become the enemy of legality. By ‘juridification’ is meant the proliferation of legal norms and legally recognized norms. By legality is meant conformity with the ideal of the rule of law. The paper begins with the most obvious ways in which juridification threatens legality. Too much law makes […]

PG Turner, ‘Lex Sequitur Equitatem: Fusion and the Penalty Doctrine’

Abstract Since an early article of Professor Brian Simpson’s, the opinion of historians and lawyers has been that the penalty doctrine which disallows the enforcement of penal stipulations in voluntary transactions derives from a fusion of law and equity. Specifically, the doctrine derives from ‘fusion by convergence’: the independent development by separate courts of law […]

Lea VanderVelde, ‘Where is the Concept of Good Faith in the Restatement of Employment?’

Abstract This article examines the standard that the Restatement of Employment law recently adopted for the implied covenant of Good Faith and Fair Dealing (CGFFD) in section 2.07. The standard covers accrued benefits, but misses most of the bad faith and unfair dealing behaviors that show up in the cases when employers take advantage of […]

‘“You Are Asking Me About Reading Things I Never Had to Read ”: Consumer Contracting in Historical Context’

Anne Fleming, The Rise and Fall of Unconscionability as the ‘Law of the Poor’, 102 Georgetown Law Journal 1383 (2014). Who is best suited to police unfair terms – the market, the judiciary, or the legislature? Williams vs Walker-Thomas Furniture has long been offered as a cautionary tale, but in her 2014 article, legal historian […]

Jacob Meagher, ‘(Re-defining) the trust of the specifically enforceable contract of sale – the vendor purchaser constructive trust’

Abstract This article provides a comprehensive outline and consequential redefinition of the oldest form of constructive trust occurring in English law, the vendor–purchaser constructive trust (VPCT). This species of constructive trust arises by operation of law, once primarily in the context of sales of land, but now in the context of any specifically enforceable contract […]

Astrid Sanders, ‘Fairness in the Contract of Employment’

Abstract Many labour law scholars in the UK are disillusioned with recent judicial decisions by the House of Lords and Supreme Court on the contract of employment. The argument made in this article is that, although there are good reasons for disillusionment with the Johnson v Unisys progeny, there have nevertheless been potentially some very […]

Nathan Oman, ‘Reconsidering Contractual Consent: Why We Shouldn’t Worry Too Much About Boilerplate and Other Puzzles’

Abstract Our theoretical approaches to contract law have dramatically over-estimated the importance of voluntary consent. The central thesis of this article is that voluntary consent plays at best a secondary role in the normative justification of contract law. Rather, contract law should be seen as part of an evolutionary process of finding solutions to problems […]

Francisco de Elizalde, ‘Should the Implied Term Concerning Quality Be Generalized? Present and Future of the Principle of Conformity in Europe’

Abstract One of the main inroads to the so-called Classic Contract Law has been made by implied terms imposing a certain quality on the subject matter of contracts, an outcome that has been achieved by resorting to a variety of legal sources and tools. Modernization and harmonization of European Contract Law, to this respect, has […]

Avihay Dorfman, ‘A Legalistic Conception of the Market: Beyond Efficiency’

Abstract This paper challenges highly influential liberal and economic characterizations of the market and its legal structure. I defend an expansive conception of market exchange, one which goes beyond the exchange of goods and services in satisfaction of preferences to include the exchange of reciprocal recognition. My argument for this conception draws on the legal […]

‘Empirical Studies of Corporate Law and Governance’

“I’m dubious of empirical analyses (except when they confirm my preexisting priors, of course), but I nevertheless found Michael Klausner’s overview very helpful and provocative: ‘This chapter examines the empirical literature on corporate law and governance in the United States. Four areas of the US corporate governance literature are discussed: (i) state competition to produce […]