The Fall and Rise of Freedom of Contract

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Declared dead some twenty-five years ago, the idea of freedom of contract has enjoyed a remarkable intellectual revival. In The Fall and Rise of Freedom of Contract leading scholars in the fields of contract law and law-and-economics analyze the new interest in bargaining freedom.
The 1970s was a decade of regulatory triumphalism in North America, marked by a surge in consumer, securities, and environmental regulation. Legal scholars predicted the “death of contract” and its replacement by regulation and reliance-based theories of liability. Instead, we have witnessed the reemergence of free bargaining norms. This revival can be attributed to the rise of law-and-economics, which laid bare the intellectual failure of anticontractarian theories. Scholars in this school note that consumers are not as helpless as they have been made out to be, and that intrusive legal rules meant ostensibly to help them often leave them worse off. Contract law principles have also been very robust in areas far afield from traditional contract law, and the essays in this volume consider how free bargaining rights might reasonably be extended in tort, property, land-use planning, bankruptcy, and divorce and family law.
This book will be of particular interest to legal scholars and specialists in contract law. Economics and public policy planners will also be challenged by its novel arguments.

Contributors. Gregory S. Alexander, Margaret F. Brinig, F. H. Buckley, Robert Cooter, Steven J. Eagle, Robert C. Ellickson, Richard A. Epstein, William A. Fischel, Michael Klausner, Bruce H. Kobayashi, Geoffrey P. Miller, Timothy J. Muris, Robert H. Nelson, Eric A. Posner, Robert K. Rasmussen, Larry E. Ribstein, Roberta Romano, Paul H. Rubin, Alan Schwartz, Elizabeth S. Scott, Robert E. Scott, Michael J. Trebilcock

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Editorial Reviews

From the Publisher
“A compendium of original scholarship about the continuing vitality of our legal and political regime based on contract. This is an important book.”—Fred S. McChesney, Northwestern University School of Law

“An interesting and impressive collection of essays that pulls together important research and arguments by an unusually impressive lineup of contributors. This a major piece of work.” —Paul H. Haagen, Duke University School of Law

“One of the most notable trends in recent legal scholarship is the reinvigoration of the contract paradigm, and these original papers by some of the most distinguished North American law-and-economics scholars make a strong case for the virtues of contractarianism across a wide spectrum of legal specialties, including contract law, tort law, family law, bankruptcy, and private international law. The commentaries develop nuanced concepts, such as efficiency-enhancing limitations on contractual freedom. This important, impressive, and timely collection, accessible to a wide audience, should become the standard reference on free bargaining and contractarianism.”—Thomas S. Ulen, University of Illinois College of Law

“These brilliant essays show that the ethic of respect for the uniqueness of individuals can influence and justify a return to bargaining freedom in a surprising variety of legal areas.”—James W. Bowers, Louisiana State University Law Center

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Product Details

  • ISBN-13: 9780822323334
  • Publisher: Duke University Press Books
  • Publication date: 8/28/1999
  • Pages: 480
  • Lexile: 1570L (what's this?)
  • Product dimensions: 6.45 (w) x 9.60 (h) x 1.67 (d)

Meet the Author

F. H. Buckley is Professor of Law at the George Mason School of Law. He is the author of several books, including Corporations: Principles and Policies.

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Table of Contents

Introduction 1
I Free Bargaining and Formalism
Contracts Small and Contract Large: Contract Law through the Lens of Laissez-Faire 25
The Decline of Formality in Contract Law 61
External Critiques of Laissez-Faire Contract Values 78
In Defense of the Old Order 93
The Limits of Freedom of Contract in the Age of Laissez-Faire Constitutionalism 103
II Bargaining around Tort Law
Courts and the Tort-Contract Boundary in Product Liability 119
Commodifying Liability 139
III Contracting for Land Use Law
Zoning by Private Contract 157
Dealing with the NIMBY Problem 177
Devolutionary Proposals and Contractarian Principles 184
The (Limited) Ability of Urban Neighbors to Contract for the Provision of Local Public Goods 192
IV Free Bargaining in Family Law
A Contract Theory of Marriage 201
Marriage as a Signal 245
Family Law and Social Norms 256
Contracting around No-Fault Divorce 275
V Bargaining around Bankruptcy Reorganization Law
Contracting for Bankruptcy Systems 281
Free Contracting in Bankruptcy 301
Free Contracting in Bankruptcy at Home and Abroad 311
VI Choosing Law by Contract
Contract and Jurisdictional Freedom 325
A Comment on Contract and Jurisdictional Competition 349
Choice of Law as Precommitment Device 357
Corporate Law as the Paradigm for Contractual Choice of Law 370
Notes 387
Contributors 457
Index 459
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  • Anonymous

    Posted July 14, 2013

    Holy crap expensive

    Terrible crsp

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    Posted February 15, 2013


    Too expensive

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