The Fall and Rise of Freedom of ContractF. H. Buckley Duke University Press, 1999 M08 27 - 477 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 |
Contents
| 1 | |
I Free Bargaining and Formalism | 25 |
II Bargaining around Tort Law | 119 |
III Contracting for Land Use Law | 157 |
IV Free Bargaining in Family Law | 201 |
V Bargaining around Bankruptcy Reorganization Law | 281 |
VI Choosing Law by Contract | 325 |
Notes | 387 |
Contributors | 457 |
| 459 | |
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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 externalities federal firm firm's formal franchise contracts franchisors 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