At lunch Dick Speidel (Northwestern) gave a tribute to the late Allan Farnsworth that asked, would an aspiring jobs candidate who said that he wanted to emulate Allan’s career be hired? Good question. Speidel characterizes Farnsworth’s approach as “Law and Law.” At the end of his talk, he asks the audience to candidly answer the question for their own school and, if the honest answer is “no” this is a failing of American legal education. The heart of his talk is a remarkably accurate, though brief, overview of the intellectual developments in contract law scholarship during Farnsworth’s long career, from legal realism, to law and economics, to critical legal studies to rights theories (he includes my approach of “manifested intention to create legal relations” in the latter category). Afterwards I commend him for his accuracy. I could not find fault with any of his story. Neither could Jay Feinman or Chuck Knapp with whom I spoke immediately afterwards.
The last session of the day is called “Contract Across the Curriculum.” Speakers are Margaret Friedlander Brinig (Iowa), Einer Elhague (Harvard) and Jody Freedman (UCLA). Turn out is much lower than “Critiquing Contract Law” before lunch–people may be sight-seeing–so I have a much better seat.
Einer is first up. He says he is trying to finish two books this summer. One on contract default rules and the other on statutory default rules. Both books are based on the distinction between “preference eliciting” default rules and “preference estimating” default rules.
In contracts, he says, we normally want default rules that efficiently achieve the preference of the parties. This does not extend to statutory default rules which are not solely meant to serve efficiency grounds, and you cannot identify the group that is the “parties” to the statute. The public are not true parties within the legislative process. Nor are legislators who must take into account their constituents’, not merely their own preferences. So how does this affect the difference between default rules in contract and default rules in statutory interpretation? [to read the rest click on show]
What we are really looking for with interpreting statutes is “enactable preferences.” This assessment is a probabilistic judgment. (And I would add somewhat more speculative than with private contracts.)
The second difference between contracts and statutes is that you are not bound by contracts unless you consent, whereas with statutes you are bound by acts of previous legislatures. So whose preferences do you look to? The enacting legislature or the current polity? He says that, paradoxically, previous legislators would want statutes interpreted according to evolving preferences–as this would increase the reach of the prior legislature into the future.
He favors using a preference eliciting default rule for statutory interpretation (like a penalty default rule in contract law). In other words, adopt interpretations that will provoke a legislative override that will make it clear what the (current) legislature really wants today. This contrasts with a default rule that tries to guess what today’s legislators would want (a “preference estimating” default rule). He then provides some examples of this approach in statutory interpretation. I am not doing his argument complete justice, but this is in part because the bulk of his analysis is in his articles and book draft and is only cursorily summarized here.
Next up is Margaret Brinig (Iowa). Iowa is home to two great contract scholars: Steve Burton and Eric Anderson. Bob Hillman began his career at Iowa too. She begins by identifying the similarities between contracts and family law. She mentions how many casebooks start with family law cases like In Re Baby M (which is indeed the second case in my casebook). Family law cases are not only more relevant to students, she notes, but are more fun. Lee Marvin may be dead, but it is interesting to read about his palimony travails.
Marriages begin with contracts. She then shows a clip from Princess Bride (one of my favorite films). It is the hysterical marriage scene. “Man and wife, say man and wife!” Wesley later says the marriage “never happened” because the princess never said “I do.” “If you didn’t say it,” he tells her, “it never happened.” What a great illustration of formalities. (In class I always use the breaking of the glass in Jewish ceremonies to illustrate the formality of assent.)
After a lengthy discussion of how contracts play a role in family relationships and family law, she then asks why not simply contractualize the conception of marriage. (This is an approach to which I have been attracted to for a long time, as are many libertarians.) Here she thinks–citing my BU colleague Kate Silbaugh–commodifies the relationship and undermines the trust that should form the basis of the marital relationship. [Me: This is a topic in which (some) feminists and (some) social conservatives have common cause, as they also have with regard to pornography.]
She concludes by discussing many aspects of the family that cannot be reduced to contractual terms, and how the legal enforcement of implied contracts may change the basic nature of family law. In the end, she affirms the difference between contracts and family law, despite their overlaps and similarities. This is a nicely delivered and nuanced talk–much more so than this cursory summary suggests.
Jody Freeman (UCLA) is the last speaker. She is a very well-regarded younger scholar. This is my first opportunity to hear her speak. Indeed, this is one of the reasons to attend conferences like these. She is going to discuss how contracts overlap administrative and environmental law. She does not want to talk about “contracting out” government services or how regulations can be challenged as a taking of private contractual arrangements, but these two areas reveal an image of government regulation as contractual in nature.
Many view regulations as “command and control,” but she notes that regulation often begins with negotiation between the regulators and the regulated. So does the enforcement process. There is a lot of informal contract behavior within the so-called command and control system of regulation. There are significant limits to the extent that government ever commands or controls anything.
So what she wants to examine is “agreement-based approaches to regulation.” She says that Bush II uses negotiated regulation more than the Clinton administration did (and there is no pejorative tone in her voice when she says this). One example is negotiations over endangered species between the agency, developers, and environmental and municipal groups. These can lead to agreements that extend beyond the authority granted by the Endangered Species Act. The “consideration” for this agreement is a “no surprises” policy which promises landowners that they can rely on these agreements when making and acting on their development plans. Some more examples of negotiated regulations follow, but I think you get the idea.
One reaction to these “consent decrees” is how the nature of the consent deemed acceptable here is completely different than that demanded of ordinary contracts between business or with consumers. Consent obtained with the coercion of government regulation and enforcement is legitimate. Consent obtained by the “coercion” of refusing to do business on any other terms is deemed to be oppressive and a contract of “adhesion.”
I do not attribute this contradiction to Jody. She has repeatedly stressed that she is not a contracts person. (After the panel we talk, she tells me she wants to pursue this issue, of which she had not previously been aware.) But the contrast between the previous 2 panels ridiculing the meaningfulness of private consent, and the virtues of “consent decrees” is striking, if only to me. Appropriately she concludes her talk by asking whether this is really contract-like or an overextended metaphor? A good question indeed. This was a very interesting, substantive and engaging talk. She’s a terrific speaker.
During the brief question time, Carol Sanger (Columbia) notes that contracts are circumventing administrative agencies, which fits the tenor of the previous panels about the insidiousness of contract in other fields.
From the floor, I suggest (as I do above) that, if she wants to pursue her metaphor, Jody needs to confront the contracts scholarship that contest the meaningfulness of consent between private actors–especially in light of the coercion brought to bear on private parties to obtain “consent decrees.”
Gillian Hadfield USC) agrees with this (though from the other direction) and adds that in the public sphere more classical contract principles are being used than are acceptable among contract scholars.
Blogging is tiring. But maybe it is just being forced to pay close attention that is tiring. Or maybe it is the wonderful meals in Montreal. Whatever it is, I am tired.
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