S. R. Blanchard
Abstract
Modern contract theory often treats equity as a defect of contract doctrine because it supposedly undermines party intent. Discretionary, ex post scrutiny of contracts is said to frustrate ex-ante planning and reduce contractual value. Theorists point to the hyperformalist contracting practices of particular groups as models to which general contract law should conform. Inaccurate histories-claiming that equity once served a narrow function in contract that is now obsolete-support excising equity from contract law. This Article corrects the contemporary empirics and the history. It shows that equity has long functioned, and continues to function, as a core mechanism for giving effect to party intent under conditions of incomplete contracting, bounded rationality, informational asymmetry, and opportunism. Today, in a range of contexts, sophisticated parties choose equitable adjudication, authorizing decisionmakers to depart from strict legal rules in favor of commercial purpose and fairness. Historically, equity was not a marginal factor but the very root of modern contract law. Rather than undermining autonomy, equity operates as a cost-effective device for aligning legal enforcement with contractual purpose where rigid rules predictably fail. When properly calibrated and competently administered, equity supports rather than threatens party intent and contract value.
John Linarelli
Theorizing a Transnational Contract Law: What Role for the CISG?
Link to Abstract Abstract
This article investigates whether a coherent transnational contract law can be said to exist and examines the role of the Convention on Contracts for the International Sale of Goods (“CISG”) within this framework. It begins by identifying five prominent cross-border contracting practices: isolated commercial transactions, trade association contracts, supply chain governance, sovereign debt, and investment arbitration, revealing a fragmented legal landscape. It then evaluates these practices through two distinct jurisprudential lenses. A strict legal positivist account, the paper argues, struggles to identify a unified transnational legal system due to a lack of systemic coherence and shared rule-making agency. In contrast, a contemporary jus commune approach is a more viable framework for conceptualizing a common law that transcends national borders. Beyond this analytical inquiry, the article raises normative concerns, highlighting how powerful actors in areas like sovereign debt and investment law often select favorable legal regimes, creating risks of injustice and domination. In this context, the CISG is presented as a comparatively balanced and transparent model for international lawmaking, suggesting that more traditional international conventions may offer a more equitable alternative to the often opaque and power-oriented arrangements that currently characterize transnational contracting.
Lawrence J. Trautman, Mark Edwin Burge, Michael Conklin, Laura Coordes, Brian Elzweig, Larry D. Foster, II, Adam J. Levitin, F.E. Geurra-Punol, John Paul, Kurt M. Sanders, & Kevin White
Introduction to the Uniform Commercial Code and the 2022 Amendments
Abstract
According to The Uniform Law Commission, it is the Uniform Commercial Code (UCC) that provides consistency and uniformity of law as “a comprehensive set of laws governing all commercial transactions in the United States.” Adopted by each state individually, the UCC recognizes that “Uniformity of law is essential…for the interstate transaction of business [since] businesses can enter into contracts with confidence that the terms will be enforced in the same way by the courts of every jurisdiction.” As private law, the UCC is applicable only “to voluntary commercial transactions between private parties. For example, the UCC governs sales and leases of goods at both the wholesale and retail level, payments and funds transfers, loans where personal property (as opposed to real estate) are used for collateral, shipping and warehousing, and transactions involving investment securities.” Your authors teach the UCC and are aware of the need for an introductory overview and update to reflect the recent changes and definitions. Because many of the textbooks now in use have not been updated to reflect the 2022 Amendments, we believe this law journal article is of considerable value.
Rachel S. Arnow-Richman
Regulatory Contract Law and Employment at Will
Abstract
This chapter explores how regulatory contract theory might inform and reshape American employment law, in particular its distinct employment at-will doctrine that permits termination without cause. That principle, and its freedom-of-contract ethos, has long constrained and distorted efforts to regulate employment contracts. Substantive statutory intervention has been piecemeal and reactive. Labor laws that might have supported a collective contract model of regulation have been too weak to sustain a culture of union affiliation or successful bargaining. And individual employment contract law has developed in ways that enhance managerial power and stymie application of traditional policing doctrines. Accepting the futility of efforts to defeat employment-at-will, the chapter imagines how regulatory contract theory might blunt its edges. It advances a common law reform agenda that preserves the core of employment-at-will – employers’ substantive discretion to terminate – but imposes non-waivable procedural and relational obligations, including reasonable notice of termination and good-faith limitations on changes to employment terms. The chapter concludes that a reorientation of employment-at-will doctrine, grounded in regulatory contract theory, can enhance workplace fairness while still preserving the basic structure of American employment law