Legal Commentary

As I mentioned to Dan Markel offline, I have been less active as a blogger so far this month in part because I've been focused almost entirely, as I have since last September, on two things:  (a) prepping for my full-year six credit contracts class, and (b) developing a thesis (embodied in an article) that merges the theory and doctrine of the class prep with what I know about how the real world of "contract practice" works.  Like most one-track people, I have been a total bore.

For a number of reasons I've been reticent to post the article until today, but Metaphors, Models, and Meaning in Contract Law is now available on SSRN.  I alluded to it in a post on The Faculty Lounge as I was starting the project last September; 23,000 words (it was above 31,000 at one point) and two major "start from scratch" rewrites later, I have decided to let it go public.  (I will do a post in the next few days on the five stages of assimilating even favorable and constructive comments:  denial, anger, bargaining, depression, and acceptance.)

The gist of it is this:  the dominant metaphor for contract in practice and the academy is "contract as model."  One upshot of this metaphor is an article of faith (among lawyers at least) about the rational linkage between what is going on before the fact in the creation of the contract, and what gets litigated after the fact.  Sometimes the metaphor is appropriate, and sometimes it is not.  I've played with my intuition and admitted casual empiricism that the contract, even in a heavily negotiated deal, is as often the "thing" that Arthur Leff conceptualized in his iconic 1964 American University Law Review article as it is a model or map of the transaction .  I've proposed an alternative metaphor of "journey" in which the objectification of an agreement in the contract (a milestone, metaphorically speaking) is often as important as the content itself.  The piece contains illustrations I use in class (see Wood v. Lucy, Lady Duff-Gordon, above, but you have to read the article to get the context), as well as a discussion of how I use the fundamentals of metaphor theory to explain hard cases in which the parties assert, and judges must choose between, competing legal "algorithms".

The abstract follows the fold.

Why does there seem to be such a wide gap between the subject matter of the usual first-year contracts course and what practitioners (particularly transactional lawyers) actually experience? My claim is that it is the result of a powerful theoretical system whose hallmark is a closed linguistic system?in the coinage of one noted scholar, ?an epistemic trap.? The subject matter of contract law requires dealing with legal truth not just as a coherent body of doctrine, but also correspondent in some way to actual self-legislation of the parties. I propose escaping the trap with a turn to metaphor theory. The underlying metaphor common to prevailing conceptions of contract law, and which demands some form of correspondent truth from the contract (and contract law), is ?contract as model of the transaction.? I suggest alternative metaphors of categories as containers, ideas (including ?the meeting of the minds?) as objects, and the transaction life cycle as a journey. The goal is to focus on the ?subjective to objective? process of the transactional life cycle, and to consider the perspectives of the participants in or observers of the transactional life cycle, and the models and metaphors that shape the conceptual frames from within which those participants and observers perceive and make use of the legal doctrine.