The Law of Bargaining

5 Pages Posted: 23 Mar 2004

See all articles by Russell B. Korobkin

Russell B. Korobkin

UCLA School of Law

Michael L. Moffitt

University of Oregon - School of Law

Nancy Welsh

Texas A&M University School of Law


This brief essay, written for a symposium on The Emerging Interdisciplinary Cannon of Negotiation, describes three categories of rules which comprise the law of bargaining. First, common law limitations govern virtually all negotiators: the doctrines of fraud and misrepresentation limit the extent to which negotiators may deceive, and the doctrine of duress limits the extent to which bargainers can use superior bargaining power to coerce agreement. Second, context-specific laws sometimes circumscribe negotiating behavior in specific settings when general rules are less restrictive. Third, the conduct of certain negotiators is constrained by professional or organizational regulations inapplicable to the general public. These categories are discussed in turn. The final section of the essay reflects on constraints on negotiator behavior in the absence of law.

Suggested Citation

Korobkin, Russell B. and Moffitt, Michael L. and Welsh, Nancy, The Law of Bargaining. Marquette Law Review, Vol. 87, pp. 839-45, 2004 , UCLA School of Law, Public Law and Legal Theory Research Paper No. 04-3, Available at SSRN: or

Russell B. Korobkin (Contact Author)

UCLA School of Law ( email )

385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States
310-825-1994 (Phone)
310-206-7010 (Fax)

Michael L. Moffitt

University of Oregon - School of Law ( email )

1515 Agate Street
Eugene, OR Oregon 97403
United States
541-346-0506 (Phone)

Nancy Welsh

Texas A&M University School of Law ( email )

1515 Commerce St.
Fort Worth, TX Tarrant County 76102
United States

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