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Friday, January 26, 2007

Contract and promise

Seana Shiffrin's new paper on Contract and Promise is up at the Harvard Law Review's website.  I read this paper a while back (9.21.05) when it was on the workshop circuit.  Here's what I wrote her then:

I liked your paper a lot. But I couldn't help thinking that one could look at matters in exactly the opposite way: one could argue that by creating a system of contract using, as Markovits puts it, the morphology of promises, we are opening the very possibility for moral agents to act in accordance with their values. From this perspective, rather than seeing contract law as eroding moral agents' virtue (as you do), we could see moral agents as having access to moralize the laws under which they live. In short, why can't the causality go the other way--and morality can erode whatever non-moralistic frame is left of our system of contract enforcement. To be sure, this perspective still requires us to say something about the basis of contract law that is not rooted in promise. But this shouldn't be too hard: even if we put efficient breach theory to one side, we can't deny that our contract law is pluralistic in its organization: it partakes in the morphology of promise but imports all sorts of other considerations into its doctrinal applications as well.

I was especially grateful for your taking on the issue of how we make sense of moralizing corporation to corporation agreements. I discuss this aspect of Markovits's work (where he denies it is possible) in some forthcoming work, which I have attached for your convenience.

All best,


My essay on the subject I advert to in my e-mail is here.

Posted by Ethan Leib on January 26, 2007 at 11:45 AM in Article Spotlight | Permalink


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» Looking for Law in All the Wrong Places - My Reaction to a New Theory of Contract and Promise from Legal Profession Blog
Posted by Jeff Lipshaw Professor Seana Shiffrin's just published Harvard Law Review article, The Divergence of Contract and Promise, has received a flurry of attention, including from Larry Solum over at Legal Theory Blog and Ethan Leib over at PrawfsB... [Read More]

Tracked on Jan 28, 2007 10:55:33 AM


Isn't that strikingly similar to part of Habermas's discussion of law in general toward the start of Between Facts and Norms? (As I dimly recall.)

Posted by: Paul Gowder | Jan 27, 2007 12:01:56 PM

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