Legal Commentary

Doctrines that allow or invite courts to police private bargains for fairness are not, in my view, alien intrusions into the modern law of contracts.  They are instead part and parcel of a larger systems of norms that conduce fairly to mutual advantage.  The distinction between private and public law is therefore not one of fundamental principle, with consequentialist principles (such as efficiency principles) animating our private legal relations with one another while contractualist ones (which include concerns for fairness) animate our private relations with the government.

Or so, in any event, I begin to argue in this new article.  The article begins by focusing on a specific private law doctrine: namely, the expectation damages remedy.  It then scrutinizes the claim that economists' can provide a satisfying account of this remedy in terms of so-called "efficient breach", and points out that this remedy has robust and pervasive features that resist economic explanation.  These features are, in fact, better accounted for from within a fundamentally contractualist perspective--or so I argue.  The article then ends by suggesting that these arguments should be understood as illustrating a broader challenge to the economic project of accounting for private law, in two special senses: first, the arguments illustrate how the law and economics movement will have a difficult time accounting for the very features of private obligations that make them obligations; and, second, the arguments illustrate how the normative framework needed to account for many details of contract law doctrine reflects an intrinsic concern for fairness.

This article is thus part of a larger project, which aims to dispel the notion that fairness considerations represent alien intrusions into the private law, and into the way that modern markets typically operate and flourish.