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 |
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Page xi
... results . Instead , we examine the intellectual failure of the progressive attack on free bargaining and free markets . Consumers are not as helpless as they were made out to be ; and intrusive legal rules designed to protect them not ...
... results . Instead , we examine the intellectual failure of the progressive attack on free bargaining and free markets . Consumers are not as helpless as they were made out to be ; and intrusive legal rules designed to protect them not ...
Page 4
... result in a better stock of laws , and not good in themselves . The prior question is always which set of laws is better . After that , the choice between judicial activism and conservatism takes care of itself . But the formalist ...
... result in a better stock of laws , and not good in themselves . The prior question is always which set of laws is better . After that , the choice between judicial activism and conservatism takes care of itself . But the formalist ...
Page 9
... result in a reputa- tional sanction . Instead , Posner advances a reputational explanation , in which individual judges nudge at the edges of legal rules in a quest for judicial status . Which direction this competition might take is ...
... result in a reputa- tional sanction . Instead , Posner advances a reputational explanation , in which individual judges nudge at the edges of legal rules in a quest for judicial status . Which direction this competition might take is ...
Page 10
... result is manifestly inefficient , as the financer is far better able to monitor the retailer and evaluate his probability of default . It is hard enough for consumers to screen a used car for faults ; must they screen the retailer's ...
... result is manifestly inefficient , as the financer is far better able to monitor the retailer and evaluate his probability of default . It is hard enough for consumers to screen a used car for faults ; must they screen the retailer's ...
Page 13
... result in the public poverty of a decline in social capi- tal.31 Should " trash TV " be permitted on the airwaves ? Why not , asks the liberal , if viewers can be found . But what this might miss are the costs such programs impose on ...
... result in the public poverty of a decline in social capi- tal.31 Should " trash TV " be permitted on the airwaves ? Why not , asks the liberal , if viewers can be found . But what this might miss are the costs such programs impose on ...
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