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

Of Fine Lines, Blunt Instruments and Half-Truths: Business Acquisition Agreements and the Right to Lie

In this article, I expand upon a happy coincidence (for scholars) in reconciling the overlap between contract and fraud. Both the recent book by Ian Ayres and Gregory Klass and the Delaware Court of Chancery in Abry Partners Acquisition V, L.P. v. F& W Acquisition, LLC addressed the issue of promissory fraud – the making of a contract as to which the promisor had no intention of performing. Each treatment, however, in focusing on fraudulent affirmative representations, falls short of (a) recognizing the fundamental aspect of deceptive promising in a complex deal, namely the half-truth, (b) articulating an appropriate doctrinal principle to address it, or (c) capturing the social and linguistic context that makes the deceptive half-truth so insidious. The archetypal facts in Abry frame the issue. When the parties to a business acquisition agreement purport to limit the buyer’s reliance to those representations and warranties set forth in the agreement, just what obligations of truth-telling have the parties contractually released? We need to grapple with the inter-relationship of law, language, mutual understanding, and trust. The language of the law (and the contract) is a blunt instrument by which to map to track the subtle fine lines of a complex agreement. I will contend that there is a kind of special arrogance in the illusion onto which lawyers hold – that the uncertainties and contingencies of the world are in their power to be controlled, and to the winner of the battle of words go the spoils. The correct doctrinal result is to presume in the transactional speech acts (including the contract), as we do in everyday life, a default of truth-telling, to permit the parties freely to contract around the rule, but to require narrow construction of the exceptions and disclaimers

Becoming a Law Professor: A Candidate\u27s Guide

This is the Table of Contents and the Introduction to a forthcoming book from the American Bar Association. The authors provide detailed advice and resources for aspiring law professors, including a description of the categories of law faculty (and what they do), possible paths to careers in the legal academy, and how to guides for filling out the AALS\u27s Faculty Appointments Register, interviewing at the Faculty Recruitment Conference (the meat market ), issues for non-traditional candidates, dealing with callbacks and job offers, and getting ready for the first semester on the job