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Vol 21 No 11 Nov/Dec 2016

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The Fall and Rise of Freedom of Contract

Edited by: F.H. Buckley

ISBN13: 9780822323334
ISBN: 0822323338
Published: July 2000
Publisher: Duke University Press
Country of Publication: USA
Format: Hardback
Price: £63.00



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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 analyse 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 re-emergence of free bargaining norms.

This revival can be attributed to the rise of law-and-economics, which laid bare the intellectual failure of anti-contractarian 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.

The contributors include: 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, and, Michael J. Trebilcock.

Subjects:
Contract Law
Contents:
1. Free Bargaining and Formalism - Contracts Small and Contracts Large: Contract Law through the Lens of Laissez-Faire Richard A Epstein, University of Chicago The Decline of Formality in Contract law Eric A Posner, University of Chicago External Critiques of Laissez-Faire Contract Values Michael J Trebilock, University of Toronto In Defense of the Old Order Timothy J Murtis, George Mason University The Limits of Freedom of Contract in the Age of Laissez-Faire Constitutionalism Gregory S Alexander, Cornell Law School 2 Bargaining Around Tort Law - Courts and the Tort-Contract Boundary in Product Liability Paul H Rubin, Emory University Commodifying Liability Robert Cooter, University of California 3 Contracting for Land Use Law - Zoning by Private Contract Robert h Nelson, University of Maryland Dealing with the NIMBY Problem William A Fischel, Dartmouth College Devolutionary Proposals and Contractarian Principles Steven J Eagle, George Mason University The (Limited) Ability of Urban Neighbours to Contract for the Provision of Local Public Goods Robert C Ellickson, Yale Law School 4 Free Bargaining in Family Law - A Contract Theory of marriage Elizabeth Scott & Robert Scott, University of Virginia Contracting around No-Fault Divorce Margaret F Brinig, George Mason University Marriage as a Signal Michael J Trebilcock, University of Toronto Family Law and Social Norms Eric A Posner, University of Chicago 5 Bargaining around Bankruptcy Reorganization Law - Contracting for Bankruptcy Systems Alan Schwartz, Yale Law School Free Contracting in Bankruptcy F H Buckley,George Mason University Free Contracting in Bankruptcy at Home and Abroad Robert k Rasmussen, Vanderbilt Univesity 6 Choosing Law by Contract - Contract and Jurisdictional Freedom Bruce H Kobayshi & Larry E Ribstein, George Mason University A Comment of Contract and jurisdictional Freedom Michael Klausner, Stanford University Corporate Law as the Paradigm for Contractual Choice of Law Roberta Romano, Yale Law School Choice of Law as a Pre-Commitment Device Geoffrey P Miller, New York University