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The Fall and Rise of Freedom of Contract

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Book

Pages: 480

Published: August 1999

Editor: F. H. Buckley

Contributors: F. H. Buckley, Richard A. Epstein, Eric A. Posner, Michael J. Trebilcock, Timothy J. Muris, Gregory S. Alexander, Paul H. Rubin, Robert Cooter, Robert H. Nelson, William A. Fischel, Steven J. Eagle, Robert C. Ellickson, Elizabeth Scott, Margaret F. Brinig, Alan Schwartz, Robert K. Rasmussen, Bruce H. Kobayashi, Michael Klausner, Geoffrey P. Miller, Roberta Romano, Robert Scott, Lawrence E. Ribstein

Declared dead some twenty-five years ago, the idea of freedom of contract has enjoyed a remarkable intellectual revival. In The Fall and Rise of Freedom of Contract leading scholars in the fields of contract law and law-and-economics analyze the new interest in bargaining freedom.
The 1970s was a decade of regulatory triumphalism in North America, marked by a surge in consumer, securities, and environmental regulation. Legal scholars predicted the “death of contract” and its replacement by regulation and reliance-based theories of liability. Instead, we have witnessed the reemergence of free bargaining norms. This revival can be attributed to the rise of law-and-economics, which laid bare the intellectual failure of anticontractarian theories. Scholars in this school note that consumers are not as helpless as they have been made out to be, and that intrusive legal rules meant ostensibly to help them often leave them worse off. Contract law principles have also been very robust in areas far afield from traditional contract law, and the essays in this volume consider how free bargaining rights might reasonably be extended in tort, property, land-use planning, bankruptcy, and divorce and family law.
This book will be of particular interest to legal scholars and specialists in contract law. Economics and public policy planners will also be challenged by its novel arguments.

Contributors. Gregory S. Alexander, Margaret F. Brinig, F. H. Buckley, Robert Cooter, Steven J. Eagle, Robert C. Ellickson, Richard A. Epstein, William A. Fischel, Michael Klausner, Bruce H. Kobayashi, Geoffrey P. Miller, Timothy J. Muris, Robert H. Nelson, Eric A. Posner, Robert K. Rasmussen, Larry E. Ribstein, Roberta Romano, Paul H. Rubin, Alan Schwartz, Elizabeth S. Scott, Robert E. Scott, Michael J. Trebilcock

Praise

“[A]n impressive lineup of law and economics scholars. . . . [A] thought-provoking collection of essays that suggests some promising changes in contract law.” - Ronald N. Johnson, Journal of Economic History

“A compendium of original scholarship about the continuing vitality of our legal and political regime based on contract. This is an important book.” - Fred S. McChesney, Northwestern University School of Law

“An interesting and impressive collection of essays that pulls together important research and arguments by an unusually impressive lineup of contributors. This a major piece of work.” - Paul H. Haagen, Duke University School of Law

“One of the most notable trends in recent legal scholarship is the reinvigoration of the contract paradigm, and these original papers by some of the most distinguished North American law-and-economics scholars make a strong case for the virtues of contractarianism across a wide spectrum of legal specialties, including contract law, tort law, family law, bankruptcy, and private international law. The commentaries develop nuanced concepts, such as efficiency-enhancing limitations on contractual freedom. This important, impressive, and timely collection, accessible to a wide audience, should become the standard reference on free bargaining and contractarianism.” - Thomas S. Ulen, University of Illinois College of Law

“These brilliant essays show that the ethic of respect for the uniqueness of individuals can influence and justify a return to bargaining freedom in a surprising variety of legal areas.” - James W. Bowers, Louisiana State University Law Center

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Author/Editor Bios Table Of Contents Rights Additional Information

Author/Editor Bios

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F. H. Buckley is Professor of Law at the George Mason School of Law. He is the author of several books, including Corporations: Principles and Policies.

Table Of Contents

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Preface

Introduction

I. Free Bargaining and Formalism

Contracts Small and Large: Contract Law through the Lens of Laissez-Faire / Richard A. Epstein

The Decline of Formality in Contract Law / Eric A. Posner

External Critiques of Laissez-Faire Contract Values / Michael Trebilcock

In Defense of the Old Order / Timothy J. Muris

The Limits of Freedom of Contract in the Age of Laissez-Faire Constitutionalism / Gregory S. Alexander

II. Bargaining around Tort Law

Courts and the Tort-Contract Boundary in Product Liability / Paul H. Rubin

Commodifying Liability / Robert Cooter

III. Contracting for Land Use Law

Zoning by Private Contract / Robert H. Nelson

Dealing with the NIMBY Problem / William A. Fischel

Devolutionary Proposals and Contractarian Principles / Steven J. Eagle

The (Limited) Ability of Urban Neighbors to Contract for the Provision of Local Public Goods / Robert C. Ellickson

IV. Free Bargaining in Family Law

A Contract Theory of Marriage / Elizabeth S. Scott and Robert E. Scott

Marriage as a Signal / Michael J. Trebilcock

Family Law and Social Norms / Eric A. Posner

Contracting around No-Fault Divorce / Margaret F. Brinig

V. Bargaining Around Bankruptcy Reorganization Law

Contracting for Bankruptcy Systems / Alan Schwartz

Free Contracting in Bankruptcy / F.H. Buckley

Free Contracting in Bankruptcy at Home and Abroad / Robert K. Rasmussen

VI. Choosing Law by Contract

Contract and Jurisdictional Freedom / Bruce H. Kobayashi and Larry E. Ribstein

A Comment on Contract and Jurisdictional Competition / Michael Klausner

Choice of Law as a Precommitment Device / Geoffrey P. Miller

Corporate Law as the Paradigm for Contractual Choice of Law / Robert Romano

Notes

Contributors

Index

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Hardcover ISBN: 978-0-8223-2333-4 / eISBN: 978-0-8223-8012-2 / DOI: https://doi.org/10.1215/9780822380122

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