For Tues. 4/12: intro. and §§I-IIA (pp. 489-511)
For Thurs. 4/14: §§IIB-III and concl. (pp. 511-529)
Consequentialist and deontological views represent a basic divergence in contract law as they do in other parts of the law we have considered. The predominant form of consequentialism in this context evaluates the consequences of the law in terms of their effects on economic efficiency. And the most common recent deontological approach has been by way of duties and rights associated with promising. Craswell is a exponent of the economic approach to contract law, but he will argue for it here only indirectly. His concern in this paper is to present and criticize applications of the model of promising.
• The bulk of the assignment for Tuesday is taken up by Craswell’s discussion of theories of promising in §I (pp. 491-503), and that will be the main focus of our discussion. The rest of the assignment is the initial part of §II, and in it, Craswell lays the groundwork for the critical part of his discussion. You should play particular attention to the introductory part of §II (pp. 503-505), where he discusses the aspects of contract law he will focus on, and his brief discussion of possible remedies for breach of contract (p. 506), where he explains some terms that he will be using in Thursday’s assignment. Craswell makes up for his lack of attention to the economic approaches he favors in a single paragraph (pp. 508f), which has three long footnotes referring us to work in the area.
• Thursday’s assignment is the critical part of the paper. The bulk of that consists of the criticisms in §III of accounts of contract law offered by Charles Fried (pp. 517-523) and Randy Barnett (pp. 523-528). The initial part of the assignment, §II. B. (pp. 511-516) can be thought of a kind of introduction to these criticisms.