Contract Law And Theory

1532 Pages·5·8.27 MB·English

by  Robert E. Scott, Jody S. Kraus

CONTRACT LAW AND
THEORY
LexisNexis Law School Publishing
Advisory Board
Paul Caron
Charles Hartsock Professor of Law
University of Cincinnati College of Law
Olympia Duhart
Associate Professor of Law
Nova Southeastern University, Shepard Broad Law School
Samuel Estreicher
Dwight D. Opperman Professor of Law
Director, Center for Labor and Employment Law
NYU School of Law
Steve Friedland
Professor of Law
Elon University School of Law
Joan Heminway
College of Law Distinguished Professor of Law
University of Tennessee College of Law
Edward Imwinkelried
Edward L. Barrett, Jr. Professor of Law
UC Davis School of Law
Paul Marcus
Haynes Professor of Law
William and Mary Law School
John Sprankling
Distinguished Professor of Law
McGeorge School of Law
Melissa Weresh
Director of Legal Writing and Professor of Law
Drake University Law School
[i/ii]
CONTRACT LAW AND
THEORY
Fifth Edition
Robert E. Scott
Alfred McCormack Professor of Law
Director, Center for Contract and Economic Organization
Columbia Law School
Jody S. Kraus
Patricia D. and R. Paul Yetter Professor of Law
Professor of Philosophy
Columbia Law School
[ii/iii]
ISBN: 978-0-7698-4894-5 (Print)
Looseleaf ISBN: 978-0-7698-4896-9
eBook ISBN: 978-0-3271-7717-3

Library of Congress Cataloging-in-Publication Data
Scott, Robert E., 1944-
Contract law and theory / Robert E. Scott, Alfred McCormack
Professor of Law, Director, Center for Contract and Economic
Organization, Columbia Law School; Jody S. Kraus, Patricia D.
and R. Paul Yetter Professor of Law, Professor of Philosophy,
Columbia Law School. -- Fifth edition.
p. cm.
Includes index.
ISBN 978-0-7698-4894-5
1. Contracts--United States--Cases. I. Kraus, Jody S. II. Title.
KF801.A7S34 2013
346.7302′2--dc23
2013010601
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[iii/iv]
DEDICATION
To
Madeline, Sam, and Julia
and
Atticus
[v/vi]
PREFACE
In the first edition to this casebook, we began with the question: Why do
we need another casebook on Contracts? Our claim then, which we believe
to be true today, is that this casebook and the approach to the study of
contract law that it develops are unique. We began with a belief that colors
much of the analysis that follows— theory works. Not only is it more
interesting to study legal rules against a background of legal theory, but the
effort has practical payoffs as well. There are clear, discernable themes and
patterns that underlie much of contract law, and by developing them
explicitly we invite the student to develop a working model of contract law.
This framework for analyzing and predicting the outcome of contract
disputes is then tested through careful case and doctrinal analysis.
Our commitment to the practical uses of theory commits us as well to a
functional analysis of contract law. We ask: What discernable purposes are
the various legal rules (as announced in cases and statutes) designed to
serve? Are the policy goals desirable and how effectively are they
implemented through contract doctrine? This functional approach begins
with an instrumental analysis that focuses on the incentive effects of
contract rules. We often ask a question familiar to students of economics:
How are the rules likely to influence the behavior of similarly situated
parties in the future? We use this economic perspective as an organizing
principle because we believe it does the best job of any contemporary
theory in explaining contract law. But we recognize that other perspectives
on contract law deserve careful attention as well. In particular, throughout
the casebook we use autonomy and related moral theory as an alternative
framework for analyzing the law of contracts. In this edition, we add a
third, pluralist, perspective that considers claims of fairness along with
norms of efficiency and autonomy. In short, we believe that a commitment
to a functional analysis of contract law does not demand the acceptance of
any particular dogma. Skeptics will find that the organizing themes of the