Bringing Order to Contracts Against Public Policy
54 Pages Posted: 11 Aug 2011 Last revised: 9 Jul 2012
Date Written: August 10, 2011
In 1821, Judge Burrough famously described the public policy defense in contract law as a “very unruly horse.” To test this proposition, this Article presents the first systematic content analysis of public policy defense case law. The sparse previous literature and commentaries on this defense, which relied on theory and leading cases, tend to accept the notion that this area of contract law proves unruly. I reveal an underlying order that emerges from the ordinary run of public policy defense cases, rather than the leading cases.
An examination of opinions written in 2009 reveals that public policy defenses that specify a violation of a statute or regulation tend to be twice as successful than those that appeal broadly to public policy. Further, the employment of the defense can be segmented to show that the “unruly” cases only comprise one-third of the sample. These findings, among others, significantly cut the magnitude of the perceived “unruly horse” problem and should reframe our approach to the public policy defense.
Keywords: contract, legal theory, defenses, public policy defense
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