Private Law Theory

Abstract:
Why does there seem to be such a wide gap between the subject matter of the usual first-year contracts course and what practitioners (particularly transactional lawyers) actually experience? This article is an attempt to bridge the gap, combining insights from academic theory and real-world law practice. My claim is that the law as discipline has developed its own powerful but self-contained conceptual framework — in the coinage of one noted scholar, “an epistemic trap.” The subject matter of contract law, something that is largely the creation of private parties and not the state, requires dealing with legal truth not just as a coherent body of normative doctrine, but also correspondent in some way to the parties’ actual self-legislation. In other words, the exercise of understanding the law relating to transactions is not wholly descriptive — “to what did the parties agree”? Nor is it wholly normative—“what should be done when the parties dispute the nature or terms of their agreement after the fact?” Much of the difficulty of the first-year contract law enterprise lies in this conflation of the law’s usual after-the fact normative focus (as, say, in tort or criminal law) with an inquiry into what private law the parties actually meant to create before the fact …

Jeffrey Lipshaw, Metaphors, Models, and Meaning in Contract Law. PENN STATE LAW REVIEW, Vol. 116, 987, 2012.

First posted 2012-07-18 17:52:29