Contract Law Present and Future: A Symposium to Honor Professor Charles L. Knapp on Fifty Years of Teaching Law

Harry G. Prince

Volume 66, Issue 4, 871-878

The American Association of Law Schools (“AALS”) Contracts Section listserv recently carried an online conversation that began with the question of whether anyone knew a case in which the court refused to enforce a contract because of its racial content. A lively and informative discussion ensued. One of the responses cited a case in which the court held that the refusal to contract based on race was wrongful, but the author went on to suggest she believed she had seen a case in an older edition of the Knapp casebook that held that an offer could be restricted on the basis on race. Shortly thereafter Professor Chuck Knapp confirmed that in the first edition of his casebook there had indeed been such a case, Maughs v. Porter, a 1931 Virginia Supreme Court decision. Professor Knapp went on to explain the holding in the case and its appearance, and subsequent disappearance, from the casebook. This brief exchange offers a number of insights about Professor Knapp’s stature and enduring contribution to the contract law academy. . .

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Casebooks and the Future of Contracts Pedagogy

Carol L. Chomsky

Volume 66, Issue 4, 879-898

Contracts teachers have long relied on the casebooks they adopt to help them build and shape both the content and the pedagogy of their contracts classes. The Knapp, Crystal, & Prince casebook has been particularly noteworthy in this regard, helping generations of new and experienced law teachers learn and explore contracts doctrine under the guidance of Chuck Knapp and his co-authors. As casebook authors take seriously the forces and trends in academic publishing, the casebooks are bound to change in significant ways, leading to innovation and even transformation of the course itself. Driving the change are at least six developments and concerns: (1) recognition that the course must include more attention to the concepts and skills that matter to practicing lawyers; (2) new accreditation standards that require identification of learning outcomes expected from our courses; (3) the need (if not yet the reality) to have the bar exam be focused less on knowledge and more on skills; (4) perhaps most importantly, increasing knowledge about what good learning practice requires in the classroom; (5) availability of new technologies to deliver more dynamic content; and (6) changing demands from publishers and students, partly as a result of the other forces mentioned. Our teaching is already adapting to the new law school environment, and visionary casebooks, in contracts as elsewhere in the curriculum, can and should lead the way.

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Under the Sun: Casebooks and the Future of Contracts Teaching

Thomas W. Joo

Volume 66, Issue 4, 899-914

What is the future of the casebook in legal education? It is tempting and fashionable to blame the current woes of law schools on their supposedly “outdated” educational practices, such as casebooks. As this Article shows, however, most of the current criticisms of casebooks and the case method are perennial ones. This does not render the critiques invalid, but it does undermine the notion that they reveal a contemporary crisis in legal education. Indeed, they are not even specific to legal education. Rather, they reflect fundamental tensions in the learning of any field: theory versus practice, general understanding versus specific technical knowledge. By saying that there is nothing truly new in these criticisms, I do not mean to say that proposals for reform are futile or ill-advised. It is simply that there is nothing new under the sun, in legal education or anywhere else. Legal education has gone back and forth on these matters, and will continue to do so, and that is probably as it should be.

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William J. Woodward, Jr.

Volume 66, Issue 4, 915-936

Forms that purport to govern consumer transactions are a central component of our modern consumer economy. They are routinely enforced because consumers are said to “manifest assent” to them, despite the fact that they are not read and not intended to be read. Recent empirical work shows that virtually no one reads or understands consumer forms. This has cast into substantial doubt the conventional explanation for enforcement—that enough people are reading the forms to cause vendors to worry about lost sales resulting from nasty terms, that “market discipline” will thus limit vendor excess. Given the empirical findings, “assent” (in any common understanding of the word) cannot explain why we enforce terms found in forms; our attempts to reconcile enforcement with some version of knowing, voluntary action characteristic of “contract law” simply confuses the analysis. Policy choices would be substantially clarified if the confounding idea of “assent” were simply removed from the analysis. Removing consumer forms from the assent-based law of contracts—that is, changing how we teach and speak about this area of law—could be a first step towards reform.

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The Duty of Good Faith: A Perspective on Contemporary Contract Law

Jay M. Feinman

Volume 66, Issue 4, 937-950

A duty of good faith performance inheres in every contract. Many courts get the contours and application of the duty of good faith wrong. These courts’ restrictive approach ties the good faith duty too closely to the express terms of the contract, requires subjective bad faith to violate the duty, and narrowly defines the standards of conduct that good faith requires.

This Article, presented at a symposium in honor of Charles Knapp, describes the senses in which the courts get good faith wrong: doctrinal, historical, structural, and political/ideological. In doing so, it applies the critical legal studies approach to the duty of good faith and to contemporary contract law in general. The Article concludes by suggesting the political and ideological significance of the courts’ approach to good faith as emblematic of a classical revival in contract law.

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Sketches of a Redemptive Theory of Contract Law

Emily M.S. Houh

Volume 66, Issue 4, 951-970

This Article is about the game we call contract law and what it does and means to those who, at one time or another, have been categorically barred from play. How have “outsider” players—such as racial minorities, women, and sexual minorities—entered the game and, subsequently, how have its governing rules—that is, contract doctrines—applied or not applied to them? On the flipside, how have common law contract doctrines responded to the entry of new players in the game? And, to the extent contract law has so responded, why has it done so? In asking and responding to these questions, this Article begins to examine how contract law facilitates, internalizes, and resists changing social contexts and movements. More broadly, as other scholars have done, it offers an alternative to the “formalist-realist” narrative of contract law by demonstrating how contract law has functioned and continues to function as an “engine of social change” that simultaneously “transforms” and “preserves” a stratified socioeconomic order based on race, gender, and sex. This Article further argues that by so functioning, the regime of American contract law legitimates or “redeems” itself within the neoliberal project of the American legal system as it responds to periods of transformative social, cultural, political, and economic upheaval.

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Contract as Evil

Peter Linzer

Volume 66, Issue 4, 971-1010

Contract is, of course, often good. It permits parties to negotiate terms that are specific to their needs, something statutes can’t do. But contract is often evil and used for evil ends, particularly because much of contract theory and doctrine is unconcerned with the distribution of power; information and shrewdness between the parties and is based, in part, on a romantic view of contract, emphasizing its basis in free will and liberty. This almost deification of Contract blinds those who follow it to the very absence of free will and liberty when the ability to deal in contract is unbalanced. The current dialogue about contracts of adhesion and the question whether they should even be considered contracts requires us to take a new look at contract. The use of contract to limit constitutional and other rights based on a notion of voluntary waiver raises serious issues about whether we should be skeptical about the assumed good of contract. We need contracts, but we need also to rethink what we mean by contract and whether the formalistic conservative libertarian approach to it needs to be reined in.

This Article looks at Margaret Jane Radin’s argument that adhesion contracts are not really contracts and should be treated more through tort law, and looks briefly at the progression of product liability from contract to tort to strict liability. The Article also consider whether the model of agency regulation should be applied when traditional contract reasoning is overwhelmed by the actual facts of a supposed bargain. The Article then examines judicial approval through contract reasoning of unfair or even dishonest conduct in a number of quite different contexts. Sometimes the good guys win, but too often they don’t because contract is said to beat them.

Contract often aids evil. Government regulation—thoughtful but serious regulation by Congress, legislatures, administrative agencies and courts—is not antithetical to freedom of contract. It is needed to protect those who lack power and skill and consequently, the very free will and liberty that are supposedly the basis of contract.

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Curing the Infirmities of the Unconscionability Doctrine

Hazel Glenn Beh

Volume 66, Issue 4, 1011-1046

This Article considers the unconscionability doctrine and confronts criticisms that the doctrine is fatally flawed as too vague, flexible, and ill-defined. It argues that unconscionability is a vital contract doctrine that entrusts common law judges with the latitude and discretion to safeguard essential contracting fairness and justice. Unconscionability serves as the line of demarcation between hard bargains and unfair bargains. This Article explores proposals to fortify and invigorate the unconscionabilitydoctrine in order to promote contracting fairness in an era where one sided, adhesionary contracts abound.

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Contractual Indescendibility

David Horton

Volume 66, Issue 4, 1047-1082

Testation is supposed to be comprehensive: when we die, we pass everything we own to our friends and family. However, a growing number of valuable things defy this principle. From frequent flyer miles to virtual property to e-mail and social media accounts, some assets expressly state that they cannot be transmitted by will, trust, or intestacy. This invited contribution to the Hastings Law Journal Symposium in honor of Charles L. Knapp analyzes this trend, which I call “contractual indescendibility.” It shows that consumers who challenge noninheritability provisions face three obstacles. First, they have to prove an ownership interest in the item. Second, they need to invalidate the indescendibility clause under contract law. And third, they must navigate the gauntlet of federal legislation that governs this area. Despite these hurdles, I conclude that companies should not have carte blanche to delete this cherished stick from the bundle of rights.

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Is There a “Duty to Read”?

Charles L. Knapp

Volume 66, Issue 4, 1083-1112

The notion that there is in general contract law a “duty to read” persists in the decisions of American courts. This Article explores the general question of what it may mean to say that there is a “duty to read,” and concludes by suggesting what role (if any) that doctrine should play in our present-day law of contract. The Article begins by examining various ways in which the “duty to read” is commonly articulated, and compares it to other contract law concepts: the “duty to bargain in good faith” and the “duty to mitigate damages.” The Article next considers a variety of ways in which the “duty to read” rule may be countered or overcome, and goes on to note and evaluate policy arguments for the rule. Having thus sketched the legal background, the Article then proceeds to examine a selection of some two dozen recent cases which discuss and in some instances rely on this rule. Finally, after enumerating a number of ways in which the rule should not be applied, the Article concludes by suggesting that the “duty to read” rule would better be denominated as “a presumption of knowing assent,” and asks what role that principle should play in present day contracts jurisprudence.

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The Revisability Principle

Andrew Tutt

Volume 66, Issue 4, 1113-1161

This Article has two purposes. The first is to explain the principle rooted in American law and culture that most strongly supports an American right to be forgotten—a deep constitutional commitment to what this Article calls the “revisability principle.” It is the principle that an individual’s identity should always remain, to some significant extent, revisable; that no person should be tied forever to her identity at a particular moment in the distant past, and that to the extent individuals must forever account for who they were long ago, their individual freedom to act and speak as they wish—both in the present and in the future—is powerfully constrained.

The second purpose of this Article is to explain how emerging technologies place unprecedented pressures on the revisability principle. Technologies and social practices that result in the permanent storage, ready access, and widespread dissemination of past mistakes or even prior identities that a person in the present hopes to leave behind impinge on the principle of revisability by making it more difficult to disassociate oneself from past choices that no longer reflect one’s self-conception. To the extent individuals must forever account for decisions in the distant past—people they, in some sense, no longer are—their freedom to speak, engage, and participate in democratic society and cultural creation is powerfully constrained.

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