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Abstract:
A few years ago, the philosopher Harry Frankfurt published an essay provocatively entitled, "On Bullshit." Convinced both that our society is laden with bullshit and that we nevertheless do not have a clear idea of what it is, Frankfurt set out to explain what bullshit is and to distinguish it from lying. While the liar seeks to lead his listener to a false belief, the bullshitter is unconcerned with truth altogether. Although the project sounds at first like the essence of philosophical navel-gazing, Frankfurt was trying to make an important point about how this indifference to truth has caused us to lose our way a bit in philosophical and political discourse.

In this project, we draw on Frankfurt's work to point out a disturbing trend in contract law: the use of bullshit promises. Bullshit promises are promises that are in a certain sense insincere even though they are not lying promises, at least not in a sense that would be actionable under the tort of promissory fraud. Promissory fraud is available in cases where a party makes a promise that it has no intention to keep, and it does so in order to deceive the promisee about its intentions. But it is quite common today for parties, especially companies dealing with consumers, to make promises that are not lying promises in that the promisor is not concealing an intention not to perform, but that are nevertheless insincere. In such cases a party uses promissory language but elsewhere reserves the right not to perform, or to change the terms of performance unilaterally as it sees fit. Such promises are not necessarily lying, especially if the promisor does not at the time have a specific plan to change the terms, but they are usually bullshit. By simply leaving its options open a party can help itself to the benefits of promissory language without being subject to the norms associated with promising, in particular some sort of commitment to a particular course of action. The tort of promissory fraud as now applied is not able to address this problem, but we will suggest minor modifications in both contract and tort that should help. At the very least, it is time courts and commentators recognized the phenomenon of bullshit promises and the potential challenges they create.

Abstract:
Formalism - the view that rules are legally binding because of their status as rules, rather than because of any substantive justification for the rules - is a hot topic in contract scholarship. Most recent scholarship has focused on whether a more formal or less formal body of contract law would maximize welfare. This paper approaches some questions surrounding formalism from the point of view of legal philosophy. It considers legal positivism, the view that law is a social artifact, and in particular it considers recent work in the positivist tradition called the planning theory of law. This theory sees law as a set of plans designed to solve certain coordination problems in society. In the beginning, these plans are typically partial, and then are gradually made more specific over time, hopefully by those best qualified to do so. This paper questions whether modern informal contract law is capable of being law notwithstanding its reliance on vague, controversial normative terminology, given that law by its nature is supposed to settle disputes about such norms. It concludes that such vague rules can qualify as law, but that their effectiveness will depend on the ability of such terms to be specified usefully. When those terms can be specified, the formal vs. informal debate becomes a debate about whom we best trust to fill in these partial plans. Unfortunately, much modern contract law is designed to resist specification except on a case-by-case basis, and is for all practical purposes ineffective at providing the sort of practical guidance we expect from law. When law is viewed as a set of plans designed to solve certain social problems, it will be seen that in many cases the general welfare would be better served by a return to the formalism of classical contract law.

Abstract:
This paper offers an original theory of contract law that draws from recent work in the philosophy of action and legal theory. Human beings are essentially planning creatures. Making plans and following through with them is crucial to everyday practical reasoning both for individuals acting alone and individuals acting together. This somewhat intuitive point was not fully appreciated in the philosophy of action as recently as twenty years ago, when Michael Bratman began to point out the inadequacies of the then-dominant view of rationality. Recently, Scott Shapiro has been applying Bratman's insights on practical reasoning to debates in legal theory to great effect, developing what he calls the planning theory of law. According to the planning theory, laws are plans for citizens, developed and applied by legal institutions to solve coordination problems that result from individuals living together in otherwise unplanned communities. In this paper, I propose a new theory of contract law informed by these insights. First I will survey the current leading theories of contract and explain why a new theory is needed. Then I will argue that viewing contracts as plans designed to solve a particular coordination problem better accounts for how we are able to make exchanges over time even in situations where the parties involved might otherwise not be able to trust one another. A planning theory of contract law takes the view that whatever ends a society might want to achieve, those ends are more likely to be achieved if the parties have the ability to create contracts, that is, to adopt legally obligatory plans to make exchanges. The theory does not seek to justify a particular body of contract law. Rather, as I will argue, it explains the fundamental doctrines of our current law better than do the presently available theories. Once we view contracts as plans, it becomes clear that a better understanding of planning will give us a better understanding of contract law. It follows that advances in the philosophy of practical reasoning as it treats plans will give us insight into contract law. In the final part of the paper, I will show how these insights go beyond an accurate description of the established central doctrines of contract law and can lead to a better resolution of more controversial issues. For now I will be limited to offering a few indicative examples that offer suggestions for further study. At the very least, I hope to establish that contract scholars should pay attention to scholarship on practical reasoning just as they have long studied moral philosophy and economics.

Abstract:
This essay is a contribution to a symposium on default rules held at Florida State University College of Law. In this symposium, Eric Posner makes a compelling argument that there are no penalty default rules in contract law, a claim that no doubt comes as a surprise to many contracts scholars. In passing, he cites Bob Scott and Alan Schwartz, who argue that there are few or no default rules in contract law, and who call for a return to formalism. Although Posner's logic is at one level iron-clad - if there are no default rules, then there are no penalty default rules - I argue that he is mistaken to cite new formalists like Scott and Schwartz as fellow travelers. This is not a central point of Posner's, and therefore my essay is not meant as a critique of his main arguments. Instead, I use his part of his discussion as an occasion to examine recent calls for a return to formalism in contract law. In particular, I focus on two distinctions Posner makes: first, between default rules and legal formalities, and second, between default rules and rules of interpretation. I argue that Scott and Schwartz are implicitly committed to collapsing both of these distinctions, and in fact offer a formalistic vision of default rules of interpretation, a vision that is, ironically, more in the spirit of a penalty default. Along the way, I briefly compare their view to classical formalism, and to Lon Fuller's famous article on legal formalities. My hope is that this discussion will set the stage for a more thorough assessment of new formalism in contract law, an assessment that is, unfortunately, beyond the scope of this essay.

contract, formalism, new formalism, default rules, penalty default rules, williston, fuller, schwartz, scott

Abstract:
Corrective-justice theorists have enjoyed a certain amount of success explaining tort law. Some of these theorists have begun to apply corrective-justice theory to the law of contract, but they have not yet explained how corrective justice, which normally argues that private law is concerned with the correction of wrongdoing done to victims by injurers, can explain a body of law like contract that seems indifferent to wrongdoing. In this paper, I argue that this void is a problem for corrective-justice theories of contract, since although contract compensates for breach it does not do so as a way of responding to breach as a form of moral wrongdoing. Corrective justice can still explain contract law, however, because there is a way of understanding corrective justice as the view that private law compensates for losses that are wrongful even though they may or may not be the result of wrongdoing. Moreover, I argue that by understanding corrective justice in this way we achieve a general theory of contract that is more acceptable from the point of view of political liberalism than the current non-corrective accounts of contract.

contract, corrective justice, private law, jurisprudence, fault standard, strict liability, coleman, weinrib, benson, liberalism, rawls, tort

Abstract:
Allegheny College is a bit of an oddity. It deals with a narrow issue (the enforceability of promises to make donations to charities), and Cardozo's majority opinion is almost universally derided as at best confusing and at worst outright devious. Yet it is still included in most contracts casebooks and taught by most contracts professors, usually as an introduction to the doctrine of promissory estoppel. In this paper, I defend the opinion - something almost no one has done without severe qualification - and argue that most of the criticisms are the result of a misguided emphasis on promissory estoppel. Although most scholars now agree that the case is decided on consideration grounds, the invocation of promissory estoppel is usually explained away as some sort of rhetorical flourish or deceit, probably designed ultimately to undermine the doctrine of consideration. I take on some of this scholarship, and then argue by contrast that the reference to promissory estoppel is not meant even to suggest that promissory estoppel controls in this case, but rather to show that whether bargaining has taken place (and therefore whether a promise is supported by consideration) depends very much on context. The key move in Cardozo's opinion is not only finding the return implied promise by the college, but also claiming that Ms. Johnston made her promise in order to induce Allegheny College to obligate itself, a point that has gone almost unnoticed in the scholarship. Perhaps more importantly, I argue that there is a larger lesson for us here about contracts jurisprudence. Finding bargaining in such an instance would likely be an unwarranted stretch in a normal business setting, but it makes perfect sense in the context of charitable subscriptions. I argue that this sensitivity to context is of a piece with two of Cardozo's other famous opinions, Wood v. Lucy and DeCicco v. Schweizer. There is room between the caricature of formalism as completely blind to particular facts and the caricature of realism as completely unbound by legal rules. Cardozo displays a jurisprudence that shows respect for the formalities of contract law, but insists on applying those rules in a way that understands transactions the way the parties themselves did.

Cardozo, contracts, Allegheny College, jurisprudence, formalism, consideration, Wood, DeCicco

Abstract:
While I disagree with Ayres and Klass about some details, overall they provide us with two very important insights: what promisees really need is to know the likelihood of performance, and the tort of promissory fraud is an underutilized tool for conveying that information. The better way to use the tort, however, is not to manipulate our presumptions about what representations are made by promises to perform. The law's presumptions are not as nuanced as our ordinary language usage, but its simplifications usually exist for good reasons. Instead, what might be more useful, at least in cases of unequal bargaining power, is to encourage drafting parties to make overt and clear representations about their likelihood of performance. I am not arguing that we should force such representations all of the time: if a party wants to undertake a simple, all-out commitment to performance, it should be able to do so without adding in information about probabilities. But on the other hand, if a party with a huge advantage in bargaining power wishes to reserve an out for itself so that it can either perform or not perform as it chooses, it should only be awarded such a right if it informed its contracting partner about the likelihood that the right will be exercised. Courts in contract cases can encourage such representations. The tort of promissory fraud would ensure those representations are reasonably accurate.

Abstract:
No abstract available