The Law of Contract and the Concept of Change: Public and Private Attempts to Regulate Modification, Waiver, and Estoppel

This article argues that contractual change is inherently problematic because contract and change are fundamentally antithetical. Because change is inevitable, however, the law of contract attempts to regulate the effect of change. These attempts are divided into two realms: public regulation, including the preexisting duty rule and its substitutes, and private regulation, including contractual no oral modification and no oral waiver clauses. The article criticizes not only the preexisting duty rule but also the duress and good faith tests that have been suggested as substitutes. Instead, the article proposes a coercion test, which is stated in detail and which is compared with duress in a matrix of cases. On the private side, the article would validate clauses that require modifications and waivers to be written, although a limited exception for estoppel (which is distinguished from waiver and modification) is recognized. The article rejects calls for complete validation or invalidation of such clauses. The paper recognizes the benefits of those clauses, especially with respect to course of performance and its effects under the Uniform Commercial Code. After examining several decades of case law, however, the article concludes that courts cannot realistically be expected to uphold such clauses in the face of reasonable, material reliance. When a party seeks public (i.e., judicial) enforcement of a private regulation, public concerns must enter any decision to enforce that regulation. While the legislation proposed in this article would generally uphold these private regulations, circumstances are suggested in which such contractual clauses will fail. Provisions to replace UCC sections 1-205, 2-208, and 2-209 are included

Book Review. Roman Law after the Fall of Rome

Review of: Stein, Peter, Roman Law in European History. New York: Cambridge University Press, 1999

Hunting Promissory Estoppel

This paper considers how promissory estoppel jobs are undertaken in two jurisdictions that ought not to need promissory estoppel. The purpose is to achieve a better understanding of systematic decisions to enforce promises and to discover the doctrinal combinations possible in mixed Civil Law/Common Law jurisdictions. This bilateral comparison allows an examination of the different philosophical and moral bases for according promises legal force, whether founded on contract and will or on delict and injury. The differing functions of formalities are also discussed. More particularly, Scotland does not have promissory estoppel but has a remarkable doctrine allowing the enforceability even of unilateral, gratuitous promises. In addition, the Scots law of personal bar, which is similar to estoppel and waiver, fulfills other jobs associated with promissory estoppel. Louisiana, on the other hand, long claimed to reject promissory estoppel but then reversed course and adopted the doctrine about twenty-five years ago. The comparison of these two legal systems affords an opportunity to observe the doctrinal mixes and philosophical choices that have long drawn comparative law scholars to mixed jurisdictions. It also reveals the roles that promissory estoppel can play and how it is not entirely tethered to the problems of the consideration doctrine.https://digitalcommons.wcl.american.edu/facsch_bk_contributions/1120/thumbnail.jp

Hunting Promissory Estoppel

This paper considers how promissory estoppel jobs are undertaken in two jurisdictions that ought not to need promissory estoppel. The purpose is to achieve a better understanding of systematic decisions to enforce promises and to discover the doctrinal combinations possible in mixed Civil Law/Common Law jurisdictions. This bilateral comparison allows an examination of the different philosophical and moral bases for according promises legal force, whether founded on contract and will or on delict and injury. The differing functions of formalities are also discussed. More particularly, Scotland does not have promissory estoppel but has a remarkable doctrine allowing the enforceability even of unilateral, gratuitous promises. In addition, the Scots law of personal bar, which is similar to estoppel and waiver, fulfills other jobs associated with promissory estoppel. Louisiana, on the other hand, long claimed to reject promissory estoppel but then reversed course and adopted the doctrine about twenty-five years ago. The comparison of these two legal systems affords an opportunity to observe the doctrinal mixes and philosophical choices that have long drawn comparative law scholars to mixed jurisdictions. It also reveals the roles that promissory estoppel can play and how it is not entirely tethered to the problems of the consideration doctrine.https://digitalcommons.wcl.american.edu/facsch_bk_contributions/1120/thumbnail.jp

Molecular Federalism and the Structures of Private Lawmaking

This symposium contribution explores molecular federalism, an idea floated briefly in the author\u27s earlier work on private lawmaking. The many private lawmakers - ranging from familiar organizations like the American Law Institute and the New York Stock Exchange to less well known ones, like the International Chamber of Commerce and associations of banks - are here envisioned as part of a federalist scheme that operates at a molecular level rather than at the level of the state. Assuming that many private entities have de facto lawmaking power, as suggested in the earlier paper, their function and legitimacy, and the strengths and weaknesses of private lawmaking, are assessed under the rubric of federalism. The paper takes up both horizontal and vertical aspects of molecular federalism, considering the possibilities of competitive private lawmaking and the potential for (and limits of) governmental control. The article accounts for the extraterritoriality of private lawmaking and considers how private legislation may escape some of the vertical checks and balances associated with state-based federalism, not only through extraterritoriality, but also through some surprising shifts in the federalist hierarchy. The paper also explores the question of how one legal regime can become dominant, while other contexts may suffer legal fragmentation. The paper attempts to place its analysis within the context of some prominent U.S. theorists of federalism, including Herbert Wechsler and Justice Brennan, and contemporary European theorists, such as Gunther Teubner. The conclusion is that molecular federalism, like its state-based counterpart, produces mixed results, and often in a way that accentuates both the strengths and the weaknesses of state-based federalism. The paper also suggests that a constitution for private lawmaking, or a similar system of meta-rules, may be necessary to allow private lawmaking to come closest to its potential

Molecular Federalism and the Structures of Private Lawmaking

This article explores molecular federalism. Private lawmakers-ranging from familiar organizations like the American Law Institute and the New York Stock Exchange to less well known ones, like the International Chamber of Commerce and associations of banks-are here envisioned as part of a federalist scheme that operates at a molecular level rather than at the level of the state. The function and legitimacy of private lawmakers, and the strengths and weaknesses of private lawmaking, are assessed under the rubric of federalism. The article takes up both horizontal and vertical aspects of molecular federalism, considering the possibilities of competitive private lawmaking and the potential for (and limits of) governmental control. The article accounts for the extraterritoriality of private lawmaking and considers how private legislation may escape some of the vertical checks and balances associated with state-based federalism, not only through extraterritoriality but also through some surprising shifts in the federalist hierarchy. The paper also explores how one legal regime can become dominant, while other contexts may suffer legal fragmentation. The paper attempts to place its analysis within the context of some prominent U.S. theorists of federalism, including Herbert Wechsler and Justice Brennan, and contemporary European theorists, such as Gunther Teubner. The conclusion is that molecular federalism, like its state based counterpart produces mixed results, and often in a way that accentuates both the strengths and the weaknesses of state-based federalism. The paper also suggests that a constitution for private lawmaking, or a similar system of meta-rules, may be necessary to allow private lawmaking to come closest to its potential. Governing Contracts – Public and Private Perspectives, Symposium. Osgoode Hall Law School, Toronto, November 9-10, 200