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Kraus on Contract Theory & Normative Powers

By Lawrence Solum

Check out Personal Sovereignty and Normative Power Skepticism by Jody S. Kraus on the Columbia Law Review's Sidebar. Here is a taste:

Correspondence accounts of the relationship between contract and promise hold either that contract law is justified to the extent it enforces a corresponding moral responsibility for a promise or unjustified to the extent it undermines promissory morality by refusing to enforce a corresponding moral responsibility for a promise. In "The Correspondence of Contract and Promise," I claim that contract scholars have mistakenly presumed that they can assess the correspondence between contract and promise without first providing a theory of self-imposed moral responsibility that explains and justifies the promise principle.1 To illustrate the dependence of correspondence accounts of contract law on a theory of self-imposed moral responsibility, I demonstrate how a "personal sovereignty" account of individual autonomy?one of the most familiar and intuitive theories of self-imposed moral responsibility?explains how and why, contrary to existing correspondence theories, promissory responsibility corresponds to the objective theory of intent, the doctrines of consideration and promissory estoppel, and most remedial contract doctrines, including the bar against mandatory punitive damages, the foreseeability limitation on consequential damages, the mitigation doctrine, and expectation damages, the paradigm example of a contract doctrine alleged to conflict with promissory morality. I conclude that correspondence theorists can defend their critiques of contract law only by rejecting the personal sovereignty theory of self-imposed moral responsibility, defending an alternative theory, and explaining why any resulting divergence between contract law and its requirements is objectionable.

Full post as published by Legal Theory Blog on December 01, 2009 (boomark / email).