Jeffrey Lipshaw, ‘Lexical Opportunism and the Limits of Contract Theory’

This essay is a reflection on the gap between the real-life practice of contract law and some of the academic theory that tries to explain it. I define ‘lexical opportunism’ as an adversary’s clever lawyering, using contractual text of a complex business arrangement, ironically as devoid of thoughtful drafting or close negotiation as the boilerplate in a consumer contract, but which, when turned into a legal theory, creates a potential for staggering liability beyond all common sense. A multi-billion lawsuit, recently settled, serves as an example, and triggers my discussion of (a) what it means to engage in theoretical assessment in contract law, (b) how lexical opportunism undercuts the meaningfulness of theory based on economic opportunism in all but the simplest cases, and (c) how normative theory based on upholding the moral sanctity of promise keeping evaporates when the parties disagree about the meaning of their promises. I argue that both economic and moral theories about contract law fail to account for issues in the use of language and depend on the naïve adoption of the correspondence theory of truth. I conclude with what I hope are some constructive thoughts about the appropriate use of theory in lawyering, and thereby mitigate my skepticism whether any single theory or discipline is capable of meaningful explanation or prediction about lexical opportunism.

Lipshaw, Jeffrey M, Lexical Opportunism and the Limits of Contract Theory (June 15, 2015). Suffolk University Law School Research Paper 15-26.

First posted 2015-06-17 12:22:54

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