The Fall and Rise of Freedom of ContractF. 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 |
From inside the book
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Page xii
... economics perspective . The 1970s law teacher who rejected contractarian norms was often deeply ignorant of market processes , and law - and - economics scholars have led the revival in free bargaining principles . However , technical ...
... economics perspective . The 1970s law teacher who rejected contractarian norms was often deeply ignorant of market processes , and law - and - economics scholars have led the revival in free bargaining principles . However , technical ...
Page 1
... not be enforced . Unequal bargaining power , exemption clauses , and fundamental breach — these were the modernist banners around which we rallied . It was a simpler time . I Why an Economic Perspective ? How long ago that Introduction.
... not be enforced . Unequal bargaining power , exemption clauses , and fundamental breach — these were the modernist banners around which we rallied . It was a simpler time . I Why an Economic Perspective ? How long ago that Introduction.
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F. H. Buckley. I Why an Economic Perspective ? How long ago that now seems . Since then , the modernist assault on ... economic theory . Not merely does law - and- economics scholarship offer a compelling normative explanation for free ...
F. H. Buckley. I Why an Economic Perspective ? How long ago that now seems . Since then , the modernist assault on ... economic theory . Not merely does law - and- economics scholarship offer a compelling normative explanation for free ...
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... economy is preferable to life in an unde- veloped country . This explains this book's emphasis on the economic analysis of bargaining freedom . More than neoformalism and theories of rights , the consequentialist perspective of the ...
... economy is preferable to life in an unde- veloped country . This explains this book's emphasis on the economic analysis of bargaining freedom . More than neoformalism and theories of rights , the consequentialist perspective of the ...
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... economics schol- ars have shown that broad objections to freedom of contract are untenable , and that narrow restrictions are best understood from an economic perspective . The scope of contract law has also expanded , with novel and ...
... economics schol- ars have shown that broad objections to freedom of contract are untenable , and that narrow restrictions are best understood from an economic perspective . The scope of contract law has also expanded , with novel and ...
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 |
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Common terms and phrases
agreement alimony American analysis argue argument bankruptcy system behavior benefits choice of law choice-of-law clauses choose claims commitment competition consumers context contract law contractual choice corporate law courts covenant marriage creditors damages Death of Contract decision default rules divorce doctrine Econ economic effect efficient ex ante ex post example federal firm firm's formal franchise contracts franchisors free bargaining free contracting freedom of contract incentives individual inefficient insolvent interest investment judges jurisdiction Kobayashi and Ribstein laissez-faire land legal regime Legal Stud legislation liability rights limited marital maximize ment neighborhood association no-fault no-fault divorce optimal options parties political potential preferences problem promises promissory estoppel protect reduce regulation relationship renegotiation reorganization require Residential Community Associations restrictions risk Robert role Schwartz Scott signal social norms spouse standard form contracts statutes supra note termination theory tion tract transaction costs zoning