Binding Promises

Description

Ironically, two of the very best books on law I've read so far in the year 2001 have been written by people whose political outlooks are in many ways opposite to my own. This is one of them. (The other is Deborah Rhode's brilliant _In The Interests of Justice_.) W. David Slawson has the distinction of having written (twenty years ago) what may be one of the worst books on the dangers of inflation ever committed to print. He has also been, to my own mind at least, consistently on the wrong side of the Microsoft case. But it doesn't matter what other disagreements I may have with him; this is a great book. In contrast to the more-or-less classical "four corners" approach to contracts, Slawson's essential thesis is that the terms of a contract just _are_ the reasonable expectations of its parties. In this work he traces the growth and influence of this view (and nearby views) through the modern (roughly post-1960) reformation of contract law at the hands of common-law judges. It's very well done. As the reader might expect, there's quite a bit of material on the development of the Uniform Commercial Code and the intentions of the late great Karl Llewellyn; there's also some trenchant criticism of the UCC, which in Slawson's view tends to hamper the developmental process of common law. Then, too, there's some terrific exposition of the modern tendency to fudge the line between contract and tort law and indeed to assimilate portions of contract law to the law of (what Slawson calls) "relational torts." Much of the exposition rests on Slawson's understanding of "bargaining power" -- i.e., the power to set the terms of a contract. This power, on his view, has basically nothing to do with "market power" and everything to do with knowledge: in the modern economy, product manufacturers are in a much, much better position both to determine the terms of consumer contracts via the use of standard forms and to have precise, detailed knowledge of the risks associated with their products. As a result, though Slawson does not quite put the matter this way, the traditional common law that was (and is) appropriate for dealings between merchants is not appropriate for dealings between merchants and consumers. Here I heartily concur -- especially as Slawson is careful to rely on common law rather than positive legislation as the foundation for reform and indeed to argue that regulatory standards aren't very effective in this regard anyway. (Slawson even dedicates the volume to the common-law judge.) And this is one area in which legal thinkers of all political stripes should be able to meet and agree: Slawson's view of contracts is eminently sensible and even common-sensical, as (he points out several times) his own students uniformly recognize when they are introduced to it. Moreover, "judicial activism" in courts at common law just isn't the danger to liberty that it is among Supreme Court justices and federal judges. Be that as it may, Slawson's discussion is thorough and helpful. Quite apart from issues of practical politics, his work is a valuable history of the reformation of the law of contracts during the latter half of the twentieth century. As such, it should be of interest to law students and legal scholars alike. And it would be nice if some libertarians and classical liberals would read it too.