Phi 213 Sp12 Reading guide for Mon., Wed., and Fri. 4/9, 11, 13:
 Richard Craswell, “Contract Law, Default Rules, and the Philosophy of Promising,” Michigan Law Review, vol. 88 (1989), pp. 489-503, 503-516, 516-529 (on JSTOR at 1289110)
 

For Mon. 4/9: intro. and §I (pp. 489-503)

For Wed. 4/11: §II (pp. 503-516)

For Fri. 4/13: §III and concl. (pp. 516-529)

Consequentialist and deontological views represent as basic a divergence in contract law as 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 assignment for Monday focuses on theories of promising. Although I suspect you will find more variety of thinking about promises than you imagined possible, you should also notice a number of connections with ideas you’ve already encountered. (You will find some terms you know from Hart being associated with Joseph Raz. That’s natural: he’s a student of Hart who has done much to develop and carry forward Hart’s style of positivism.)

• The initial part of §II lays the groundwork for the critical part of Craswell’s discussion. You should play particular attention to the very beginning (pp. 503-505), where he discusses the aspects of contract law he will focus on. Also note the brief discussion of possible remedies for breach of contract (p. 506), where he explains some terms that he will use later.* 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. The latter part of §II (pp. 511-516) can be thought of a kind of introduction to the criticisms that Craswell will offer of accounts of contract law that model contracts on promises.

• §III is the main critical part of the paper. The bulk of it consists of detailed criticisms of the accounts of contract law offered by Charles Fried (pp. 517-523) and Randy Barnett (pp. 523-528).

* If you’d like to see a compact further discussion of these terms, you can look at pp. 53f of one of the classic papers in the area, L. L. Fuller and William R. Perdue, Jr., “The Reliance Interest in Contract Damages: 1,” The Yale Law Journal, vol. 46 (1936), pp. 52-96 (on JSTOR at 791632).