The Bewitchment of Intelligence: Language and Ex Post Illusions of Intention

Lawyers who negotiate and litigate over complex deals have an intuitive notion of the value of what they do in connection with the contract. The arguments around technical contract language often are a lawyers’ game; in most cases, what is clear would have been clear on a handshake; and what is tightly negotiated bears only a random relationship to the areas of future dispute. If they happen to have drafted tight and clear language around the particular matter in dispute, it is as much luck as foresight. Thereafter complex agreements can have binding effect for years, but most of the relationship transpires without explicit reference to the contract. The problem to which much of contract interpretation scholarship is directed arises only when there is a significant disagreement not resolvable by non-legal means. If the contract is not sufficiently clear on the subject so the parties agree on the outcome, or a court has an easy case, how do courts go about filling gaps that the parties simply did not address, or providing meaning in the present circumstance to words that do not unambiguously resolve the problem? I want to suggest an answer I believe is intuitive to practitioners but may be provocative in the academy. The search for an illusive ex ante mutually intended meaning is a waste of time, as is worry about the ancillary problem of opportunism. The creation of the complex contract and its later interpretation in a difficult case of ambiguity are distinct events. If a previously negotiated term that is capable of being ambiguous nevertheless has a mutually understood meaning, it will be apparent at the time of the potential dispute, but in that instance there will be no dispute and no jurisprudence. If there truly is a dispute, however, there is no going back to a mutually intended meaning as of the time the contract was made, because the words only take on meaning at the time of their application to the circumstance. It follows that opportunism is a function of extra-legal morals and norms, and is not controllable by language that turns out to be disputable, if the parties choose to dispute it. The proper focus of courts, therefore, is a pragmatic resolution of disputes, and not a search for mutual intention

Duty and Consequence: A Non-Conflating Theory of Promise and Contract

I argue that the debate between deontologists and consequentialists of contract law conflates and therefore unduly confuses the analysis of each of them. The debate is a reprise of the conflation of reason and knowledge. Present-day legal consequentialists see reason (pure or practical) as unhelpful or worse. Pragmatism, if anything, rules the day. But the present-day rationalists fare no better, seeking to make constitutive claims of knowledge on the basis of reason. Hence the concept of contract as promise has been subject to the criticism that it fails as an explanation of the law (versus an exposition of how our relationships ought to be ordered). There is irony in the overwhelming interest of the consequentialist legal academy in trying to find a scientific answer to our most fundamental questions of duty and deontologists to defend morality consequentially. I argue that there are limits to each and that we operate consequentially and deontologically in the ordering of our private affairs, often simultaneously. The mistakes (typical of reason’s drive to a single maximand) are assuming, on one hand, that contractual consequentialism defines our commercial relationships, or, on the other, that contracts are capable of containing our moral obligations. Put another way, there is nothing moral about the contract (versus the underlying promise), and the conflation of the two is the source of the confusion over the limits of the law of contract. The moral or transcendental aspect of the contract is the underlying promise - its soul, so to speak - but the law can only doctor its body, what shows in the contract

Metaphors, Models, and Meaning in Contract Law

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 frameworkin 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\u27 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\u27s usual after-thefact 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. I propose escaping the epistemic trap with a turn to metaphor theory. The underlying metaphor common to prevailing conceptions of contract law, and which demands some form of correspondent truth from the contract (and contract law), is contract as model of the transaction. I suggest alternative metaphors of categories as containers, ideas as objects, and the transaction lifecycle as a journey. The goal is to focus on the subjective to objective process of the transactional lifecycle, and to consider the perspectives of the participants in or observers of that process. In particular, I consider the models and metaphors that shape the conceptual frames from within which those participants and observers perceive, make use of, and derive meaning from what end up as contracts, which are best thought of as the objective manifestations of inter-subjective agreements

Law as Rationalization: Getting beyond Reason to Business Ethics

Embedded in the way we use the law is the tendency of human reason to justification, in the words of one philosopher, “the thirst for rationality that creates lies.” I contend that this tendency is exacerbated by the conflation of what is knowable as a matter of science, and that which we might believe is normative. I rely on Kant’s critique of theoretical and practical reason to assess claims to objectivity in social science approaches to law, and to suggest it is not surprising that the operation of theoretical and practical reason would tend to the conflation of the descriptive and the normative. When we understand the illusions of which reason is capable, we may be more circumspect about claims of objective knowledge and more willing to challenge assertions of a single right answer on normative issues (the modus operandi of most legal argumentation). Nevertheless, we have a sense that there are objective standards of right and wrong, bespeaking right answers, if not single right answers, on difficult issues, and these are the basis for ethics, if not law. How does one bring broad universalisms down to practical application, and have the confidence one’s judgments are right, and not someone else’s view of dogmatism? I discuss the mystery that lies behind the process of judgment, and conclude that the best check against the illusions of reason is our ability to have a relation with, and understand the viewpoints of, others. In particular, I consider Buber’s concept of dialogue, and how it might affect common types of ethical decisions in business