Promise and Private Law

By Oman, Nathan B. | Suffolk University Law Review, Summer 2012 | Go to article overview

Promise and Private Law


Oman, Nathan B., Suffolk University Law Review


I. INTRODUCTION II. THE BILATERALISM OF CONTRACTUAL DAMAGES   A. From Promise to Expectation Damages   B. Reconstructing Promise and Expectation Damages III. PROMISE AND PRIVATE STANDING   A. Private Standing as Disaggregated Enforcement   B. Civil Recourse and Contract as Promise IV. PLURALISM, PROMISE, AND PRIVATE LAW V. CONCLUSION 

I. INTRODUCTION

Charles Fried's Contract as Promise (1) is a justly celebrated work. Published in 1981, it arrived at a moment when contract scholarship, particularly in its most theoretical inflections, was turning against the idea that contract law could be presented as a coherent normative practice. Grant Gilmore had announced the death of contract a few years before, insisting that contract as a form of self-imposed liability had reached a point of intellectual and practical exhaustion. (2) The less idiosyncratic Patrick Atiyah had just finished his magnum opus, The Rise and Fall of Freedom of Contract, which put forward a far more rigorous version of the same historical argument. (3) The Critical Legal Studies movement was in its rambunctious childhood, and Duncan Kennedy was likewise taking aim at the coherence of contract law. (4) In this environment, Fried's claim that "contract[] can be traced to and is determined by a small number of basic moral principles" (5) with promissory morality at their center was an iconoclastic defense of classical liberal principles and the basic coherence of contract law. (6)

Fried's theory has attracted more than its share of critics, including from among those who share his basic liberal orientation. (7) Far from dying, however, promissory approaches to contract law have become a prominent feature of the philosophy of contract. (8) Nevertheless, a great deal has happened in private-law theory since Fried published his book thirty years ago. The most dramatic develoPMent has been the spectacular rise of the law-and-economics movement. (9) Unlike, perhaps, when Fried published his book, no serious work on contract theory can afford to ignore economic arguments in the way that Contract as Promise does. (10) To his credit, Fried has announced his interest in updating his argument in light of the profusion of economic work on contract law. (11)

This essay revisits Fried's Contact as Promise in light of further develoPMents in the private-law scholarship: the rise of corrective-justice and civil-recourse theories. Corrective-justice theory and civil-recourse theory have arisen primarily in debates over the law of torts, (12) although efforts have been made to apply both approaches to contract law. (13) Corrective-justice theory began as a critique of economic theories of tort law. (14) Those theories conceptualize tort as a mechanism for creating optimal incentives for agents to invest in precautions against harming others, primarily by forcing tortfeasors to internalize costs through money damages. (15) As Jules Coleman and other corrective-justice theorists point out, this theory cannot account for the bilateralism of damages. Damages in private litigation are always paid by defendants to plaintiffs, yet if damages are merely fines that internalize externalities, the payment to the plaintiff makes no sense, and in some circumstances is economically perverse. In contrast, corrective-justice theorists, harking back to Aristotle, have argued that wrongdoers have a duty to compensate their victims and that it is this duty that accounts for the bilateral structure of private-law remedies. (16)

Civil-recourse theory is a response to corrective justice. Recourse theorists share with corrective-justice theorists a skepticism about economic theories of private law, but they believe that the duty to compensate provides an equally incomplete account. (17) Strictly speaking, the private law does not enforce any particular set of duties. (18) If someone commits a tort or breaches a contract, no state prosecutor will step in to enforce the norms of tort or contract law. …

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