• Preface


    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



  • 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

  • “[A]n impressive lineup of law and economics scholars. . . . [A] thought-provoking collection of essays that suggests some promising changes in contract law.”


  • “[A]n impressive lineup of law and economics scholars. . . . [A] thought-provoking collection of essays that suggests some promising changes in contract law.”

  • “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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  • Description

    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

    About The Author(s)

    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.

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