Until We’re Not All Realists Anymore: Wilkie v. Auto-Owners Insurance and Michigan’s Neo-Formalist Jurisprudence of Contract Interpretation

The phrase, “we are all [legal] realists now,” as Michael Green notes, has been “so often said that it has become a cliché to call it a ‘cliché.’ ”1 Except when we are not, as the Michigan Supreme Court indicated in a series of cases beginning with Wilkie v. Auto-Owners Insurance Co.2 in 2003 and culminating with Rory v. Continental Inssurance Co.3 in 2005. Although this Essay focuses on Wilkie, this line of cases not only provides significant pedagogical benefits in terms of teaching contract interpretation but also demonstrates the power of jurisprudence to control development of legal doctrine. Moreover, these cases indicate, in Michigan at least, that formalist concepts still have a place in modern contract law and jurisprudence

Political Economy, Capitalism and the Rule of Law

There is a symbiotic relationship between a society’s form of economic activity and the Rule of Law institutions that support, facilitate, and limit that activity. Economic activity and Rule of Law institutions interact in a dynamic relation that creates, allocates, denies, and adapts power among competing entities. The core fact is that of transformation of the nature of power and the identities of those who control it. Nothing in such a system remains static and, unlike other systems, it is the natural effect of the system to reward its participants for creative contributions that sustain and advance its dynamism. The Rule of Law in the Western democracies represents the collection of deeper cultural values within which the dynamic activity takes place and operates as a facilitator, governor and definer of the economic activity by which power is distributed and social goods created and shared. Joseph Schumpeter once explained: “The capitalist process not only destroys its own institutional framework but it also creates the conditions for another. Destruction may not be the right word after all. Perhaps I should have spoken of transformation.” This point is raised because it seems quite obvious that we are at a point of transformation and that, while we can understand that fact without question, we still have no clear idea about the full nature, scale, elements, timing, costs, benefits or consequences of that transformation. It is much like Nikolai Kondratiev observed in accordance with his description of “Kondratiev Waves” that periodically affect the form and structure of an economic system. A key aspect of Kondratiev’s “Wave” concept is that the system does not simply change in degree as a linear phenomenon but shifts “in kind” and takes on new characteristics while discarding some of those associated with its previous form. Although there are challenges to the existence of the periodic “waves” in terms of their specific timing there is no real dispute that capitalist societies undergo periodic fundamental transformations. Technological developments in communication and automation are currently driving such a fundamental transformation. Moreover, despite that this wave of development arguably began in the mid-1990s, the end state is still mostly conjectural. Given what we are saying about the close connection between economic activity and the Rule of Law, we assert that it is difficult to understand either sub-system in isolation from the other. It is also inevitable that the Rule of Law element, while creating a framework within which economic activity occurs, is largely controlled and caused by the economic factors that are supported by the system generated by strong Rule of Law institutions. We are fully committed to the Western version of the Rule of Law and consider the form that economic activity takes in Western democracies as a vital “cause-and-effect” element of that system. In this brief analysis we will explore these considerations and provide some context and support for the assertion. At the beginning we want to make plain that this exercise is not empirical or evidential. It is not perfectly rational or demonstrable through use of pure logic or Reason. Nor do we want to conceal or deny that in some ways the insights or claims offered are not partial, presumptive, based on principles that cannot be proven, hypocritical, or representative of ideals rather than “truths”

Contracts and Automation: Exploring the Normativity of Automation in the Context of U.S. Contract Law and E.U. Consumer Protection Directives

Given a choice between two systems of contract rules, a court or legislature may have a normative obligation to adopt the rule that is more susceptible to coding and automation. This paper explores the ramifications of that normative proposition through the lens of multiple contract doctrines that traditionally involve "messy" judgments or multiple interacting judgments regarding which human beings are - arguably - capable of making finely nuanced analyses. Using the common law doctrine of unconscionability and Polish Civil Code Article 385 on unfair terms in consumer contracts, this paper explores the differences between contract rules that require human analysis versus those that can be applied with strong reliability by automated processes. Finally, the paper analyzes some of the potential pitfalls of this normative proposition in light of technological, economic, and moral/ethical concerns

What is the Sound of One Form Flapping?: Hill v. Gateway 2000, Inc. and the Deconstruction of Individual Autonomy

Hill v. Gateway 2000, Inc.1 is a fantastically awful decision. Legally, Judge Frank Easterbrook’s analysis and reasoning2 either ignore or grossly mischaracterize the law in several respects. Practically, Hill (along with its partner-in-crime, ProCD v. Zeidenberg)3 led later courts to rewrite the law of sales, particularly with respect to consumer transactions.4 Pedagogically, this decision has been justifiably ridiculed as meriting an “F” if it were presented on a law school exam. 5 Judicially, and from a Rule of Law perspective, this case demonstrates the ability of judicial ego and a desire to shape the law to the judge’s own preferences to produce unintended consequences and incoherence in the law. On every level, Hill is a bad decision

Mentoring as Duty and Privilege

Article published in the Michigan Bar Journal

Givings Recapture: Funding Public Acquisition of Private Property Interests on the Coasts

Article published in the Harvard Environmental Law Review

Joint and Several Liability and Contribution under CERCLA Sections 107(A)(4)(B) and 113(f)(1)

Article published in the Harvard Environmental Law Review

Bargaining Power in Contract Theory

This Article analyzes the role that legal conceptions of bargaining power play in defining the jurisprudence of contract law. Contract law cannot ignore bargaining power asymmetries. Unchecked power imbalances in the bargaining context soon become indistinguishable from naked coercion, and at some level the imbalance undermines both the consent of the weaker party and the legitimacy of the resulting bargain. The debate over the role of the legal doctrine of inequality of bargaining power and subdoctrines such as unconscionability and duress has largely focused on whether and how the state should intervene in individual private agreements to correct perceived power disparities. While bargaining power disparities may be difficult to analyze in these individual cases, legal conceptions of bargaining power may also be useful in defining the boundaries of contract law. Specifically, where both parties to a transaction possess some ability to affect the outcome of that transaction, they may take advantage of the relatively flexible and unregulated regime of private contract. In other transaction types – such as labor agreements, consumer credit contracts and gifts – one or both parties lack legally cognizable bargaining power and the resulting transaction is subject to relatively greater degrees of public ordering. At this macro level, bargaining power provides a positive and normative explanation for why some promises are enforceable in contract and others are regulated under relatively more intrusive public regimes

Escaping Toxic Contracts: How We Have Lost the War on Assent in Wrap Contracts

Article published in the Sw. Law Review