Post by Henry Smith
At last month’s American Law and Economics Annual Meeting, I attended a very interesting session on Commercial Law and Contracts, at which the first two papers were in tension with each, as were their authors – in a polite way! The first was “The Common Law of Contract and the Default Rule Project,” by Alan Schwartz and Bob Scott. They argue that the program over the last century by academics, codifiers, and Restaters (“drafters”) to supply transcontextual defaults rules that apply in a wide variety of contracts was doomed to fail. Common law contract supplied a limited number of defaults that do have this feature, such as expectations damages for breach of contract. Going beyond these traditional rules faced the drafters with a dilemma. They did not have knowledge enough to supply defaults that would make sense for particular industries. So they chose the transcontextual route, but to create additional defaults here required them to fudge the content, opting for fuzzy or underspecified standards based on custom and reasonableness, and commercial parties have not been receptive to these efforts, often opting out of them.
