The Fall and Rise of Freedom of Contract

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F. H. Buckley
Duke University Press, 1999 M08 27 - 461 pages
Declared dead some twenty-five years ago, the idea of freedom of contract has enjoyed a remarkable intellectual revival. In The Fall and Rise of Freedom of Contract leading scholars in the fields of contract law and law-and-economics analyze the new interest in bargaining freedom.
The 1970s was a decade of regulatory triumphalism in North America, marked by a surge in consumer, securities, and environmental regulation. Legal scholars predicted the “death of contract” and its replacement by regulation and reliance-based theories of liability. Instead, we have witnessed the reemergence of free bargaining norms. This revival can be attributed to the rise of law-and-economics, which laid bare the intellectual failure of anticontractarian theories. Scholars in this school note that consumers are not as helpless as they have been made out to be, and that intrusive legal rules meant ostensibly to help them often leave them worse off. Contract law principles have also been very robust in areas far afield from traditional contract law, and the essays in this volume consider how free bargaining rights might reasonably be extended in tort, property, land-use planning, bankruptcy, and divorce and family law.
This book will be of particular interest to legal scholars and specialists in contract law. Economics and public policy planners will also be challenged by its novel arguments.

Contributors. Gregory S. Alexander, Margaret F. Brinig, F. H. Buckley, Robert Cooter, Steven J. Eagle, Robert C. Ellickson, Richard A. Epstein, William A. Fischel, Michael Klausner, Bruce H. Kobayashi, Geoffrey P. Miller, Timothy J. Muris, Robert H. Nelson, Eric A. Posner, Robert K. Rasmussen, Larry E. Ribstein, Roberta Romano, Paul H. Rubin, Alan Schwartz, Elizabeth S. Scott, Robert E. Scott, Michael J. Trebilcock

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Contents

Free Bargaining and Formalism Contracts Small and Contract Large Contract Law through the Lens of LaissezFaire
25
The Decline of Formality in Contract Law
61
External Critiques of LaissezFaire Contract Values
78
In Defense of the Old Order
93
The Limits of Freedom of Contract in the Age of LaissezFaire Constitutionalism
103
Bargaining around Tort Law
119
Commodifying Liability
139
Contracting for Land Use Law
157
Family Law and Social Norms
256
Contracting around NoFault Divorce
275
Bargaining around Bankruptcy Reorganization Law
281
Free Contracting in Bankruptcy
301
Free Contracting in Bankruptcy at Home and Abroad
311
Choosing Law by Contract
325
A Comment on Contract and Jurisdictional Competition
349
Choice of Law as a Precommitment Device
357

Dealing with the NIMBY Problem
177
Devolutionary Proposals and Contractarian Principles
184
The Limited Ability of Urban Neighbors to Contract for the Provision of Local Public Goods
192
Free Bargaining in Family Law
201
Marriage as a Signal
245
Corporate Law as the Paradigm for Contractual Choice of Law
370
Notes
387
Contributors
457
Index
459
Copyright

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About the author (1999)

F. H. Buckley is Professor of Law at the George Mason School of Law. He is the author of several books, including Corporations: Principles and Policies.

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