Volume 45

Execution Watch, KPTF 90.1 FM, Houston, Texas, is a Public Radio program that only broadcasts when the State of Texas is executing one of its death-row inmates. Hosted by a former prison inmate and providing live coverage at Huntsville Prison, Execution Watch promotes political accountability and responsible social change through legal and political commentary on each case. On February 15, 2011, the author of this article appeared on Execution Watch to comment on the execution of Michael Wayne Hall. Hall’s case presented troubling issues of mental retardation and Texas standards and procedures for determining whether a defendant is mentally retarded. At the time of his crime—participation in the kidnapping, torture, and murder of a young girl—Hall’s IQ was 67, he [...]

The emergence of social media, from Facebook to Myspace and Linkedin to Twitter—much like the earlier evolution of email, IM, and web 2.0—have changed the way people communicate, expanding the virtual horizons for social networking and business promotion on these popular communications platforms. Smartphones and other portable internet data generators such as iPads, and even internet hotspots incorporated into motor vehicles, have encouraged the blurring of work and personal time such that people are tethered to their devices, checking their work and personal messages wherever they are and whatever else they are doing. In the first case of its kind, the National Labor Relations Board (Labor Board or NLRB) issued a complaint against an employer, American Medical Response of Connecticut [...]

Since the so-called conflicts revolution, choice-of-law theory continues to reject the vested rights approach of the First Restatement of Conflicts without fully criticizing the failures of the governmental interest theory in the Second Restatement of Conflicts. At the same time, neither approach adequately examines the question of what constitutes a legitimate resolution to a conflict between states. This Article suggests that the choice between the rights language of the First Restatement and the governmental interest language of the Second Restatement is actually a debate between legal formalism and legal realism. Both choices lead to a legitimacy deficit for theorists and judges who attempt to resolve conflicts. This Article applies liberal and republican political theory to the debate between vested rights [...]

There is good reason to think that law and war have nothing to do with one another, and this has certainly been so for most of the lifetime of mankind.  Cicero’s famous observation—silent enim leges inter arma—from which I take my title, was not a novel insight when uttered in 52 B.C. and in any case was not said in the context of war, but of a prosecution for murder in the aftermath of the Roman riots of that era between the partisans of the populares and optimates. Clausewitz, however, said much the same thing when he decried moderation in warfare, and expressed contempt for legal rules: “War is . . . an act of force to compel an enemy to do our will. . . [...]

In Michigan v. Bryant, the United States Supreme Court wrote another chapter in the clash between the Confrontation Clause of the Sixth Amendment to the United States Constitution and the admissibility of extra-judicial statements. This article presents an outline of Bryant’s “ongoing emergency” doctrine, an examination of how Bryant may affect Massachusetts’s decisional law, and a view that Bryant’s holding and dictum may mark a return to the basic contours of the reliability of excited utterances in the context of domestic violence prosecutions. . .

The death penalty is rapidly receding in the former British colonies of common-law Africa.  Although proposals to institute or retain the death penalty for a wide assortment of crimes are not uncommon, actual judicial executions have grown extremely rare south of the Sahara Desert.  The death penalty has fallen into disuse in most of common-law Africa, and many of these countries are now considered de facto abolitionist.  As in other parts of the retentionist world, death-penalty abolition is an incremental process, nurtured more by small steps—stays of execution, grants of clemency, judicial clarification—than by dramatic ones, the most important of which for the continent of Africa was the 1995 decision of the Constitutional Court of South Africa, deeming the death [...]

In the modern era, Congress has enacted many federal “tort reform” statutes that supersede contrary state laws, and judicial precedents leave little doubt as to their constitutionality.  Even President Ronald Reagan, known for his deference to the states, established a special task force to study the need for tort reform that concluded the federal government should address the modern tort liability crisis in a variety of ways.  Still, some question the appropriate constitutional role of Congress in enacting federal tort reform.  This Article explores the support for federal tort reform found in the constitutional principles articulated by James Madison, Alexander Hamilton, and other leading founding figures, with particular emphasis on the Federalist Papers. . .

Charles Fried wrote Contract as Promise because he objected to the idea—growing increasingly prevalent in the years preceding the book’s publication—that something other than moral duty underlay the social institution through which the state intervenes to enforce, at the request of one private party, the promissory obligations of another private party. Under one view, for example, contract law is a product of social development since the Industrial Revolution, the means by which large, impersonal institutions—corporations, unions, governments—regulate their affairs.  According to another line of thought, contract law is merely a way of doing justice and imposing social policy on parties who have come, in one way or another, to interact with each other. Professor Fried perceived a wholesale abandonment of the justification of contract [...]

Thirty years after its publication, Contract as Promise remains the canonical presentation of a liberal, autonomy-based conception of contractual obligation. In Charles Fried’s words, “The moral force behind contract as promise is autonomy: the parties are bound to their contract because they have chosen to be,” and their “rights and duties [are] as far as possible a function of their own will and not of standards of justice external to that will.”  While other strains of liberal contract theory (consent-based, obligation-based) may differ from Prof. Fried’s “will” theory of contracts in other respects, they all share his foundational commitment to the view that promissory obligations, unlike most other forms of obligation, are voluntarily assumed. The same is true of most [...]

In the 1980s, Charles Fried was right to focus on what was missing from both the “death of contract” and “law and economics” approaches to contract law: the internal morality of contract. But he focused on the wrong morality. Rather than embodying the morality of promise-keeping, the enforcement of contracts can best be explained and justified as a product of the parties’ consent to be legally bound. In this essay, I observe that, in Contract as Promise, Fried himself admits that the “promise principle” cannot explain or justify two features that are at the core of contract law: the objective theory of assent and the content of most “gap fillers” or default rules of contract law. After summarizing how consent [...]

This article begins to articulate a theory that a central moral concern in contract law in action is flexibility to recognize the need for adjustment, release, and forgiveness among good faith parties, most obviously in relational contexts. The article explores some telling examples, from the morality of the businessmen Stewart Macaulay wrote about in Non-Contractual Relations in Business to that of the characters in Harriet Beecher Stowe’s satiric novel The Minister’s Wooing, which puts the need for promissory forgiveness at the center of the dramatic action. Also examined in this article are the animating moral concerns of the law in action school of thought itself. The overall aim is to promote inquiry by contracts scholars into the moral concerns of [...]

Charles Fried’s Contract as Promise is the first post-realist will theory of contract. It is post-realist in two senses. First, Fried has learned the lessons of the realist critique of Langdellian formalism. He does not attempt to deduce the entire law of contract from a single promise principle. The theory is attuned to the multiple purposes and principles, as well as the practical exigencies, that figure into contract law. In his discussion of Red Owl, for example, Fried writes that “contract as promise has a distinct but neither exclusive nor necessarily dominant place among legal and moral principles.”  While Fried minimizes the conflict between those different principles and purposes—imagining established boundaries and diplomatic relations rather than competing armies and territorial [...]

Charles Fried’s 1981 book, Contract as Promise, started the modern discussion in the United States and many other places on contract theory, and remains an influential view to which all contract theorists who have come later must respond. This Article will consider two important themes connected with Fried’s project: first, the nature of the theoretical claims in Contract as Promise; and second, the question of whether contract law, especially when this area is equated with the enforcement of promises, is in tension with John Stuart Mill’s “Harm Principle.” Part I of this Article looks at Fried’s book from the perspective of theory construction, evaluating Fried’s claims in the context of the project of offering a theory of contract law. Part [...]

What sanctions should the law inflict on those who break their contracts? Would it matter if more severe sanctions were likely to cause prices to rise? What if most contracting parties prefer higher sanctions and higher prices, or what if they prefer lower sanctions and lower prices? And whatever the answer to these questions might be, why do economists and philosophers think about these issues so differently? Of course, when I speak of “economists” I mean something closer to “most economists, though not necessarily all of them; and including the many lawyers (like me) who do not have advanced degrees but who use economics in their scholarship.” An analogous but even broader qualification should be presumed whenever I speak of [...]

The concept of “efficient breach”—the idea that a contracting party should be encouraged to breach a contract and pay damages if doing so would be more efficient than performance—is probably the most influential concept in the economic analysis of contract law. It is certainly the most controversial. Efficient breach theory has been criticized from both within and without the economic approach, but its most prominent criticism is that it violates deontological ethics—that the beneficiary of a promise has a right to performance, so that breaching the promise wrongs the promisee. This essay argues that this criticism is misplaced, and that efficient breach theory, properly understood, is not inconsistent with parties’ complying with their deontological obligations. Instead, the intuitive resistance that [...]

Charles Fried’s Contract as Promise stands as a model of principled legal argument. It took a single, integrating thought—that a promise lies at the heart of every contract—and then reconstructed broad swaths of doctrine as elaborations of that thought. The book’s argument is all the more impressive because the promissory ideal in whose name it seeks to unify contract law is not straightforward. On the contrary, grounding contract in promise highlights two of contract law’s most distinctive yet least understood features: that the law establishes liability strictly, rather than based on fault; and that it creates forward-looking rather than the usual backward-looking entitlements, entitlements to be made better off rather than to secure the status quo ante. These features of [...]

To a generation of law students, lawyers, and legal scholars, Contract as Promise has provided a liberal theory of contract that explains fundamental features of contract law and provides a normative foundation for evaluating the legal doctrine. As is well known by now, the promissory theory of contracts justifies the legal enforcement of contracts in terms of respect for individual freedom and autonomy to make binding commitments. The touchstone of contractual analysis from this perspective is the intent of the promisor. Together with other moral theories of promising, this perspective on contract law has generated voluminous scholarship. Thirty years after the book’s publication, I am unlikely to shed new light on the merits of the perspective. Rather, I take the occasion [...]

The promise principle and its roots in a certain type of morality of individual obligation, which play the central role in Charles Fried’s vision of contract law, have importantly contributed to rescuing contract law from absorption into tort law and from the imposition of externally imposed standards that are collective in origin. The principle makes a mammoth contribution to alerting us to the tyranny of interference with individual self-determination. However, this Essay questions whether a promise-centered system, derived from a moral philosophy of promising (without an observable and testable foundation in reality) and geared to internal individual obligation and duty, can provide the basis on which the public law can decide the hard cases in contract law. First, the promise-sufficient [...]

Contract as Promise, Charles Fried’s modern classic, argues that contract law has a “moral basis” in the “promise principle.”  It was written, of course, in response to scholars who foresaw the “Death of Contract.” According to them, it is a mistake to think of contract as a distinct domain of law, with a distinct foundation. Properly understood, contract is just an instantiation of the more basic category of tort, with the latter understood as law that requires persons who wrongfully cause losses to compensate their victims. Contract-as-tort scholars made their point in different ways. Patrick Atiyah took a historical route, arguing that promising was only center stage in contract law for a brief period in the late-nineteenth and early-twentieth centuries, and [...]

Contract theory has long been preoccupied with the common law. Contracts is taught in the first year of law school along with the other “common law subjects.” The rise of the modern view of contracts as involving mutually dependent undertakings—as opposed to the earlier independent covenants model—was carried out by the common law courts. Contracts are usually enforced with damages, the classic common law remedy. From proto-realists like Holmes, through the realists and their successors in law and economics, theorists have emphasized the law and downplayed the special role of equity, as developed over the centuries by Chancery and building on a tradition of thought going back at least to Aristotle. Equity is treated either with disdain as useless moralizing [...]

Pluralism is on the agenda of contract theory. Maybe pluralism is a budding movement, the next big thing; maybe it is just a rehashing of pragmatic muddling through that either shuns or doesn’t deserve the name “theory.” But whatever our predilections or eventual evaluations, it is worth noting that pluralism has become a question for theorists interested in contracts. Some of the scholars articulating what I will call pluralism have adopted this moniker themselves; others have developed pluralist insights without calling on the label. This paper has two goals. The first is to draw together a number of works that develop a pluralistic view in contract theory and to map out some of the different approaches they offer. The second [...]

This essay was part of a symposium on the thirtieth anniversary of the publication of Charles Fried’s Contract as Promise and revisits Fried’s theory in light of two developments in the private-law scholarship: the rise of corrective justice and civil-recourse theories. The structural features that motivate these theories—the bilateralism of damages and the private standing of plaintiffs—are both elements of the law of contracts that Contract as Promise sets out to explain. I begin with the issue of bilateralism. Remedies—in particular the defense of expectation damages—occupy much of Fried’s attention in Contract as Promise, and he insists that this particular remedial response flows from a commitment to promissory morality. I am skeptical of this claim and seek to show the [...]

At the time Contract as Promise was written, there were two views of the subject in the field: a traditional, doctrinal and not particularly theorized view that saw contract as the law’s way of allowing private parties to create and enforce the terms that would govern transactions and long-term undertakings, and a burgeoning literature that saw contract law as a tool of social control imposing obligations on parties growing in part, but only in part, from dealings into which they had voluntarily entered. This latter view saw contract law disappearing into tort law, which is quite frankly a means for adjusting—on grounds of perceived fairness, social utility or redistribution—relations between parties. The former was associated with an individualistic ethos friendly to capitalism [...]