• Selected
• Entire List

Abstract:
This article argues that a significant amount of law is privately made and suggests that privately made law should be subjected to the same kinds of questioning as publicly made law, considering in the end whether privately made law might be considered "molecular federalism." Private lawmaking, through which one private group makes rules that govern much larger groups, extends well beyond the boundaries of relatively well-known examples of private legislatures like the American Law Institute and the Uniform Law Commissioners. The phenomenon includes the practical ability of private entities to make law governing many kinds of corporate, commercial, and consumer transactions, from credit cards to letters of credit. After suggesting the broad scope of private lawmaking through an inductive argument, the article shifts to linguistic analysis to show that the artifacts resulting from these private processes are best considered law and are inadequately described by terms like contract, norms, private ordering, or self-regulation.

The article goes on to a tentative assessment of private lawmaking, asking about efficacy, representation, respect for autonomy, and similar matters. The article ends by emphasizing that much of the legitimacy of private lawmaking depends on competition in lawmaking and surmises that under competitive circumstances, private lawmaking may function as federalism on a molecular level. Because the number of potential lawmakers is much greater, molecular federalism may multiply the benefits of state-based federalism. It may also enhance its quality, enabling bottom-up lawmaking instead of top-down imposition of rules by the state.

Abstract:
This introduction to the symposium on Empirical Scholarship in Contract Law, sponsored in January 2006 by the Contracts Section of the Association of American Law Schools and published in the Tulane Law Review, pushes for an increased focus on the real world and argues that highly quantitative statistical analyses of published judicial opinions are no more empirical than simple case notes. While this short essay argues for increased rigor in empirical research, it also recognizes the limits of scientific methods for legal analysis and suggests that the seduction of scientific appearances, now as in the days of Langdell's legal science, should be viewed with a mixture of hope and caution. Although it points out the limits of scientific aspiration in the law, the piece also applauds the role of empiricism in the field of contracts, and especially in bringing a more rigorous form of experience to both scholarship and teaching. Finally, the essay introduces the symposium papers: Stephen Choi and Mitu Gulati's study of disclosures in sovereign debt contracts; George Geis's computerized experiment using marketing data to assess the optimal precision of contract default rules; Stewart Macaulay's article on the new legal realism; and Debora Threedy's analysis and exposition of legal archaeology.

contracts, empiricism, Legal Realism, legal science

Abstract:
This paper, commenting on the work of Jýrgen Basedow, addresses the legal regulation of economic relations in the context of globalization. The paper applies the idea of the mixed jurisdiction, traditionally focused on legal systems that partake of both the common law and the civil law, to the complex of privately made law and publicly made law that governs contemporary economic relations. Differing criteria that might be used to assess and choose between competing rules or competing systems of rule generation are evaluated, and normative considerations are raised. The paper proposes a model to demonstrate how privately made law, though generated by and adopted in the marketplace, can nevertheless be inefficient economically and questionable politically. The conclusion offers the musical metaphor of a trill to appreciate the dynamics involved in regulating economic relations in a world where rules may come from several states or from private entities.

Contracts, Letters of Credit, Global Legal Pluralism, Mixed Jurisdictions

Abstract:
This symposium contribution explores molecular federalism, an idea floated briefly in the author's earlier work on private lawmaking. The many private lawmakers - ranging from familiar organizations like the American Law Institute and the New York Stock Exchange to less well known ones, like the International Chamber of Commerce and associations of banks - are here envisioned as part of a federalist scheme that operates at a molecular level rather than at the level of the state. Assuming that many private entities have de facto lawmaking power, as suggested in the earlier paper, their function and legitimacy, and the strengths and weaknesses of private lawmaking, are assessed under the rubric of federalism.

The paper takes up both horizontal and vertical aspects of molecular federalism, considering the possibilities of competitive private lawmaking and the potential for (and limits of) governmental control. The article accounts for the extraterritoriality of private lawmaking and considers how private legislation may escape some of the vertical checks and balances associated with state-based federalism, not only through extraterritoriality, but also through some surprising shifts in the federalist hierarchy. The paper also explores the question of how one legal regime can become dominant, while other contexts may suffer legal fragmentation. The paper attempts to place its analysis within the context of some prominent U.S. theorists of federalism, including Herbert Wechsler and Justice Brennan, and contemporary European theorists, such as Gunther Teubner. The conclusion is that molecular federalism, like its state-based counterpart, produces mixed results, and often in a way that accentuates both the strengths and the weaknesses of state-based federalism. The paper also suggests that a constitution for private lawmaking, or a similar system of meta-rules, may be necessary to allow private lawmaking to come closest to its potential.

federalism, private lawmaking, private legislation

Abstract:
This paper considers how promissory estoppel jobs are undertaken in two jurisdictions that ought not to need promissory estoppel. The purpose is to achieve a better understanding of systematic decisions to enforce promises and to discover the doctrinal combinations possible in mixed Civil Law/Common Law jurisdictions. This bilateral comparison allows an examination of the different philosophical and moral bases for according promises legal force, whether founded on contract and will or on delict and injury. The differing functions of formalities are also discussed. More particularly, Scotland does not have promissory estoppel but has a remarkable doctrine allowing the enforceability even of unilateral, gratuitous promises. In addition, the Scots law of personal bar, which is similar to estoppel and waiver, fulfils other jobs associated with promissory estoppel. Louisiana, on the other hand, long claimed to reject promissory estoppel but then reversed course and adopted the doctrine about twenty-five years ago. The comparison of these two legal systems affords an opportunity to observe the doctrinal mixes and philosophical choices that have long drawn comparative law scholars to mixed jurisdictions. It also reveals the roles that promissory estoppel can play and how it is not entirely tethered to the problems of the consideration doctrine.

promissory estoppel, promise, personal bar, Scots law, mixed jurisdiction, civil law, Stair

Abstract:
This article defends the decision to retain usage of trade, course of performance, and course of dealing in the revision of Article 1 of the Uniform Commercial Code. The article responds to recent neoformalist criticisms of the incorporation approach and offers a theoretical justification. Usage of trade and course of dealing should be understood as part of the parties' language, following Wittgenstein's understanding of language. Course of performance, which presents a weaker case in terms of language, should be understood as a legal formality, following Fuller's explanation of formalities. Thus understood, custom and conduct can be as important as written documents in determining the parties' assent. Ignoring custom and conduct risks subordinating the parties' assent as the central norm of contractual liability.

Abstract:
This article argues that contractual change is inherently problematic because contract and change are fundamentally antithetical. Because change is inevitable, however, the law of contract attempts to regulate the effect of change. These attempts are divided into two realms: public regulation, including the preexisting duty rule and its substitutes, and private regulation, including contractual "no oral modification" and "no oral waiver" clauses. The article criticizes not only the preexisting duty rule but also the duress and good faith tests that have been suggested as substitutes. Instead, the article proposes a "coercion" test, which is stated in detail and which is compared with duress in a matrix of cases. On the private side, the article would validate clauses that require modifications and waivers to be written, although a limited exception for estoppel (which is distinguished from waiver and modification) is recognized. The article rejects calls for complete validation or invalidation of such clauses. The paper recognizes the benefits of those clauses, especially with respect to "course of performance" and its effects under the Uniform Commercial Code. After examining several decades of case law, however, the article concludes that courts cannot realistically be expected to uphold such clauses in the face of reasonable, material reliance. When a party seeks public (i.e., judicial) enforcement of a private regulation, public concerns must enter any decision to enforce that regulation. While the legislation proposed in this article would generally uphold these private regulations, circumstances are suggested in which such contractual clauses will fail. Provisions to replace UCC sections 1-205, 2-208, and 2-209 are included.

Abstract:
Promissory estoppel, long a controversial topic in the common law, was introduced into a civil-law framework in Louisiana in 1985. This article examines how the doctrine has functioned when removed from its common-law origins and how civilian theory has reacted to the import from the common law. Promissory estoppel was conceived as a substitute for consideration, yet the civil law does not use the doctrine of consideration. Originally used to solve problems incident to gifts, promissory estoppel in its civil-law incarnation has been legislatively excluded from operating in many donative contexts. Still, by observing how promissory estoppel works within a civil-law setting, we learn about the essential power of the doctrine. It has survived the transition in systems remarkably intact, continuing to do traditional promissory estoppel "jobs," and even continuing to appear in litigation over donative transfers.

In addition, observing the interaction of promissory estoppel and civilian theory offers the rare chance to watch comparative law in action. The common law and civil law, which usually operate in entirely different countries, are forced together in this instance. This article discusses not only the profound theoretical effects that the systems have on each other, but also peculiar aspects of the "mixed jurisdiction." Two competing tendencies are suggested: the inclination to resist the foreign, on the one hand, and the urge to reach for the new, on the other hand. Within the context of promissory estoppel, these dual tendencies result in an apparent slowness to innovate but also a concomitant supercapacity for rapid doctrinal growth. This ambivalence pervades the interaction between systems, and is perhaps inherent in the mixed jurisdiction.