The Baby and the Bath Water: The American Critique of European Contract Law

American Journal of Comparative Law, Volume 61, Issue 3, 2013

Postnational Rulemaking between Authority and Autonomy Conference, Amsterdam, September 20-21, 2012

Boston Univ. School of Law, Public Law Research Paper No. 12-43

28 Pages Posted: 25 Aug 2012 Last revised: 22 Jun 2013

See all articles by Daniela Caruso

Daniela Caruso

Boston University School of Law

Date Written: August 24, 2012

Abstract

This paper aims to contribute to a larger research agenda concerning the possibility of meaningful transatlantic dialogue about private-law reform. Both the European Union and the United States regulate private autonomy extensively. In spite of contextual similarities, there are several barriers making dialogue among legal scholars difficult. In particular, the conversation about social justice, an important element of private law reform within the European Union, is now quite marginal in American contract law scholarship. In U.S. legal academia, social justice is a matter for moral philosophers, development economists, and constitutionalists. Against this background, this paper takes a close look at a recent transatlantic exchange in matters of private law reform – a Chicago Law School conference on a proposed Common European Sales Law – and identifies a few counter-intuitive points of convergence between U.S. and European scholarship. Along the way, the paper also highlights structural and discursive incompatibilities, but concludes that the dialogue is, as a whole, valuable and should be kept alive.

In designing a post-national architecture of autonomy, Europe may draw better lessons from U.S. regulatory experiences if it deconstructs, first, the wholesale pro-market rhetoric of otherwise relevant literature. When this is done, the payoffs of American commentaries become more appreciable. Taking the lead from some Chicagoan insights, this paper recommends customizing the empirical investigation of EU markets so as to factor socio-economic asymmetries into the equation of private law reform.

Keywords: transatlatic dialogue about private-law reform, European Union law, United State law, private law reform, post-national architecture of autonomy

JEL Classification: K33, K39

Suggested Citation

Caruso, Daniela, The Baby and the Bath Water: The American Critique of European Contract Law (August 24, 2012). American Journal of Comparative Law, Volume 61, Issue 3, 2013; Postnational Rulemaking between Authority and Autonomy Conference, Amsterdam, September 20-21, 2012 ; Boston Univ. School of Law, Public Law Research Paper No. 12-43. Available at SSRN: https://ssrn.com/abstract=2135179

Daniela Caruso (Contact Author)

Boston University School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States
617-353-7024 (Phone)
617-353-3077 (Fax)

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