Monthly Archives: May, 2013

Kevin Davis, ‘Contracts as Technology’

Abstract: If technology means, “useful knowledge about how to produce things at low cost”, then contracts should qualify. Just as mechanical technologies are embodied in blueprints, technologies of contracting are embodied in contractual documents that serve as, “blueprints for collaboration”. This Article analyzes innovations in contractual documents using the same kind of framework that is […]

Gary Low, ‘A Psychology of Choice of Laws’

Abstract: There is certainly a lot of choice going around in the market for contract law. This is a good thing, since choice is key to self-determination and may help improve our laws. Yet there may be such a thing as choice overload, and the introduction of the Common European Sales law is a timely […]

Boilerplate Symposium Part XVI: Guy Rub on Market Solutions to the Boilerplate Problem

“Those who have not read Professor Radin’s book, Boilerplate, might be tempted to believe that they are fully familiar with the problem of boilerplate provisions in standard form agreements. While the problem of consumers who accept agreements they did not read is well documented, Radin’s masterpiece is so comprehensive, and analyzes the issues that boilerplate […]

Jamie Abrams, ‘Distorted and Diminished Tort Claims for Women’

Abstract: Childbirth is distinctly characterized in tort law by the literal emergence of a potential putative plaintiff. This Article seeks to position the birthing woman — distinct from the pregnant woman or the parent — squarely within the negligence framework and, in doing so, to challenge prevailing assumptions dominating obstetric medical decision-making. The existence of […]

Boilerplate Symposium Part XV: Cheryl Preston on Boilerplate and the Role of Courts

“Professor Radin’s book is a monumental effort to bring together in one place various facets of the seemly intractable problem of non-negotiated standard term contracts and to offer creative insights at each step. This legal problem is not new: Judge Cowen in Cole v. Goodwin, 19 Wend. 251, 273-74 (N.Y. Sup. Ct. 1838), was adamant […]

Civil Recourse Symposium papers – Indiana Law Journal

Now on open access at the Indiana Law Journal are papers from the AALS Torts and Compensation Systems Panel on Civil Recourse, some of which have already been published on the net. The full list of papers is: Twenty-First Century Tort Theories: The Internalist/Externalist Debate Michael L. Rustad Civil Recourse Theory’s Reductionism Guido Calabresi Instrumental […]

Smith and Lee, ‘Discretion’

Abstract: Discretion is an important feature of all contractual relationships. In this Article, we rely on incomplete contract theory to motivate our study of discretion, with particular attention to fiduciary relationships. We make two contributions to the substantial literature on fiduciary law. First, we describe the role of fiduciary law as “boundary enforcement,” and we […]

Boilerplate Symposium Part XIV: Peter Linzer, That Was No Contract: That Was My Lunch

“Peggy Radin’s book, Boilerplate has got lots of people talking – and blogging, particularly about her argument that boilerplate contracts aren’t contracts at all, and shouldn’t be overseen by contract law. Peggy was expanding on the theme of the apologists for adhesion who argue that the form contract is simply part of the product; you’d […]

Boilerplate Symposium Part XIII: Charles Calleros on the Reasonable Expectations of Consumers

“Peggy Radin’s new book, Boilerplate, is welcome contribution to the literature precisely because it is sufficiently clearly and plainly written to be accessible to a broad spectrum of educated and intellectually curious readers. It thusly helps to fulfill our obligation to educate not just future lawyers but also members of the general public, who can […]

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 […]