Boilerplate Symposium Part XII: Jean Braucher on the Common Law of Contracts as Residual Law

“Peggy Radin in Boilerplate gives a rich, comprehensive account of contract law and theory as applied to standard form terms. For anyone inclined to focus on the common law of contract as the primary way to think about the problem of nasty form terms, this book is an obvious go-to source. My critique may seem odd for a contracts blog, but here goes: I don’t think the common law of contracts is the right place to focus when thinking about unfair deals, except as a history lesson to understand the origins of regulation that is now more rigorous. Emphasis on the common law tends to put a “freedom of contract” ideological spin on problems that are already regulated otherwise and in more effective ways, based on more sophisticated theory. Radin includes perspectives other than those of standard contract theory, so my objection is a subtle one about emphasis. We live in the age of the regulatory state and administrative agencies …” (more)

[ContractsProf Blog, 27 May]

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