25 November 2015

Seven Years and Counting

Seven years ago today--25 November 2008--I posted my first entry in the world of the blogosphere. Lisa Marie Otto of Regent University law school had set up pryorpostsindia so I could report from my term as a Fulbright Scholar in India. 1000+ posts later I can report on the blessings and bains of blogging.

First the good stuff. Blogging has forced me to write, and thus think, more clearly about what I've read. It is one thing to read through an article; it is another to read it with enough care to restate, analyze, and critique the author's thesis. Blogging has also occasioned more complete reading. To blog about a book or an article makes it more likely that I have read the whole. Non-scholarly blogging about, say, places I've visited or movies we're seen, also tends to focus my attention on the experience, to be a more active observer. Finally, blogging spreads the audience for my scholarly works. The audience for articles published by law review is naturally small but blogging has gotten a few non-academics to read some of what I've written.

On the other hand, like social media generally, blogging is a distraction from other more important stuff. And, given the challenges of academic writing, I can tell that I've published less as I've blogged more. Academic writing is hard and it requires hours of sustained attention. Blogging has a quicker payoff and thus is an easy escape from the drudgery of the harder stuff of academic life.

Nonetheless, I plan to keep at it. I find blogging to be an outlet and a repository for my thoughts. It's the case that I can refresh my vague recollection of some idea by seeing if I've blogged about it. And thus far I've tended to agree with my earlier self.

So for the time being at least, I judge the benefits of blogging to exceed its costs and so plan to keep at it.

23 November 2015

Two for One: "Behind the Beautiful Forevers" and "An Irish Country Doctor"

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Since relocating to Raleigh we've joined a local book club. We've worked our way through two books, both of which were enjoyable, albeit for quite different reasons.

Beyond the Beautiful Forevers by Katherine Boo is an example of long-form non-fiction. Based on four years of research in a Mumbai slum, Boo weaves together an account of several families as they try (and largely fail) to move out of the slum and up to the lower reaches of India's growing middle class. Behind the Beautiful Forevers painstakingly details the extraordinary challenges of everyday life, the petty feuds, and gross corruption that characterizes the lives of the tens of millions who move to India's mega-cities in the hope of a different life, which explains the book's subtitle: Life, Death and Hope in a Mumbai Undercity. By the time Boo ends her story, the slum is razed in another round of expansion of Mumbai's international airport. Thus, for all I know, I rode over or past it when it when I visited Mumbai in 2010
Mumbai Slums at Water's Edge

Patrick Taylor's An Irish Country Doctor was a delightfully light read. Sort of a Northern Ireland version of Jan Karon's Mitford series with a bit more realism.
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Reading An Irish Country Doctor even occasioned a coincidence that I mentioned here. Turns out that Patrick Taylor is on also Twitter and that both of us greatly enjoy the hard-to-find leechi fruit.

In short: two good books that we recommend.

19 November 2015

SCOTUS in Review: US Supreme Court Bankruptcy Cases 2014-2015 -- Part 5

After a short break, it's back to my review of what the Supreme Court has recently done in connection with bankruptcy law. (Part 1, Part 2, Part 3, and Part 4.)

IV. Administration of the Estate: Attorneys’ Fees

In Baker Botts L.L.P. v. ASARCO LLC,[1] the work of the debtor’s attorneys helped lead to the rarest of all bankruptcy results: one where all creditors are paid in full. ASARCO, an integrated copper mining, smelting, and refining company, filed for relief under chapter 11 and retained Baker Botts and another firm as counsel for the debtor in possession. The firms represented ASARCO in a complex fraudulent conveyance action against its parent company and obtained a judgment valued between $7 and $10 billion.[2] Faced with this judgment, the parent provided cash to ASARCO sufficient to pay all its creditors in full. With the elimination of the interests of ASARCO’s creditors, its parent resumed control of the debtor and promptly caused it to object to the applications for attorneys’ fees of its counsel. After a six-day hearing, the bankruptcy court awarded attorney’s fees of over $120 million, plus a fee enhancement of $4.1 million for exceptional work and another $5 million for work involved in defense of the application.

On appeal, the district court largely affirmed the bankruptcy court and, in particular, held that Baker Botts was entitled to fees on the defense of its application.[3] The Fifth Circuit reversed and held that the attorneys were not entitled to fees in defense of their application because they, not the debtor, were the primary beneficiaries of that work.[4]

Notwithstanding the Fifth Circuit’s decision, the state of the law on this issue was confused[5] so the Supreme Court granted Baker Botts’s petition for certiorari and affirmed. Writing for the majority, Justice Thomas began with the “bedrock principle” of the so-called American Rule, in which each litigant pays its own fees unless a statute or contract provides otherwise.[6] The terms of retention of counsel by ASARO did not “provide otherwise” so the question became whether the policy, history,[7] or implications of Bankruptcy Code § 330 did so.

The majority concluded that the reference to “services” in Bankruptcy Code § 330(a)(1)(A) was limited to direct services to the debtor and that defense of a fee application was not such a direct service.[8] Moreover, defense fees were not indirect services to the debtor even though failure to award them would dilute the recovery of its professionals.[9] Third, the majority was unpersuaded that Bankruptcy Code § 330(a)(1)(6), which authorizes compensation for preparation of the underlying fee application, permitted fees for the defense of that application.[10] Finally, the majority rejected the argument that there should be a judicial exception for fees incurred in defending a fee application—subject as it is to attacks from multiple parties—because to do so would be to rewrite the statute.[11] Justice Sotomayor believed that the judicial exception discussion was unnecessary and thus concurred with the majority except with respect to that portion of Justice Thomas’s opinion. Justices Breyer, Ginsburg, and Kagan dissented.[12]

The majority opinion noted that, in addition to statutory reversals of the American Rule, contracting parties can agree to reallocate attorneys’ fees. This observation suggests that professionals retained by debtors or creditors’ committees under Bankruptcy Code § 327(a) could seek such a provision in their retention agreements. Alternatively, while it would not have been possible in the ASARCO case, a debtor could employ special counsel to vindicate the interests of its general bankruptcy counsel to payment of its fees. The fees of special counsel could be compensable as an expense of the estate under Bankruptcy Code § 330(a)(1)(B). Only time will tell if these alternatives will withstand objection.

[1] 135 S.Ct. 2158 (2015). Disclaimer: I was a party to an amicus brief supporting petitioners.
[2] According to the Court of Appeals for the Fifth Circuit, this “was the largest fraudulent transfer judgment in Chapter 11 history.” Asarco, L.L.C. v. Jordan Hyden Womble Culbreth & Holzer, P.C. (In re ASARCO, L.L.C.), 751 F.3d 291, 293 (5th Cir. 2014).
[3] ASARCO LLC v. Baker Botts, L.L.P. (In re ASARCO LLC), 477 B.R. 661, 675 (S.D. Tex. 2012) (“The time spent defending a fee application is necessary and beneficial to the bankruptcy system as a whole, and indirectly, to each estate participating in the system.”) (Citation and internal quotation marks omitted.)
[4] In re ASARCO, 751 F.3d 299 (“The primary beneficiary of a professional fee application, of course, is the professional.”).
[5] See 3 Collier on Bankruptcy ¶ 330.03[16][a] (16th ed. 2013).
[6] ASARCO, 135 S.Ct. at 2164. For a critique of the Court’s assertion that the American Rule dates back to the eighteenth century see Bruce A. Markell, Loser’s Lament: Caulkett and ASARCO, 35 Bankr. L. Letter 1 (August 2015).
[7] The Court failed to address the history of Bankruptcy Code § 330. For a thorough consideration of the award of fees in defense of fee applications in Chapter X cases see Brief for Amici Curiae Bankruptcy Law Scholars in Support of Petitioners, 2014 WL 7145500 (2014).
[8] ASARCO, 135 S.Ct. at 2165 (“Time spent litigating a fee application against the administrator of a bankruptcy estate cannot be fairly described as ‘labor performed for’–let alone ‘disinterested service to’–that administrator.”).
[9] Id. at 2166.
[10] The majority was not persuaded for the following reason:

The Government argues that because time spent preparing a fee application is compensable, time spent defending it must be too. But the provision cuts the other way a § 327(a) professional’s preparation of a fee application is best understood as a “service[e] rendered” to the estate administrator under § 330(a)(1), whereas a professional’s defense of that application is not.

[11] Id. at 2168 (“More importantly, we would lack the authority to rewrite the statute even if we believed that undercompensated fee litigation would fall particularly hard on the bankruptcy bar.”).
[12] The dissenters rejected the majority’s wooden focus on “actual, necessary services” language in Bankruptcy Code § 330(a)(1)(A) in light of the introductory phrase, “reasonable compensation.” Id. at 2170 (“[W]ork performed in defending a fee application may, in some cases, be a relevant factor in calculating ‘reasonable compensation.’”).

18 November 2015

More on (Not) Nudging

I've previously posted on the theory of "nudging" advocated by one of President Obama's favorite law professors, Cass Sunstein. (Read them here and here.) To repeat myself again another time:
Nudge is the idea that careful rearrangement of individual incentives by a multitude of government (dis)incentives can get the market to do what social planners believe is best. Since individual and ultimately societal desires are generated by a multitude of material causes,... manipulation of those causes by a series of well-designed "pinpricks" will cause us to want what is "better" for us than whatever we would otherwise desire. Neo-classical economics championed by the Chicago School of Economics meets state planning.
I've also posted some positive remarks about the work of Christopher McCrudden here and made use of his work on the use of "dignity" as a foundation for human rights in my article Looking for Bedrock: Accounting for Human Rights in Classical Liberalism, Modern Secularism, and the Christian Tradition (which you can download by going here).

I want to use this opportunity to combine nudging and dignity by directing folks to The Dark Side of Nudging: The Ethics, Political Economy, and Law of Libertarian Paternalism by McCrudden and Jeff King that you can download here. A representative quote:
In this article, we explain why this philosophy is seriously flawed. We make four arguments. The first is that there is no justification for a presumption in favor of nudging as a default regulatory strategy, as Sunstein asserts. It is ordinarily less effective than mandates; such mandates rarely offend personal autonomy; and the central reliance on cognitive failures in the nudging program is more likely to offend human dignity than the mandates it seeks to replace. Secondly, we argue that nudging as a regulatory strategy fits both overtly and covertly, often insidiously, into a more general libertarian program of political economy. ... Thirdly, while we are on the whole more concerned to reject the libertarian than the paternalistic elements of this philosophy, Sunstein’s work, both in Why Nudge?, and earlier, fails to appreciate how nudging may be manipulative if not designed with more care than he acknowledges. Lastly, because of these characteristics, nudging might even be subject to legal challenges that would give us the worst of all possible regulatory worlds: a weak regulatory intervention that is liable to be challenged in the courts by well-resourced interest groups. In such a scenario, and contrary to the "common sense" ethos contended for in Why Nudge?, nudges might not even clear the excessively low bar of doing something rather than nothing.
I don't find each of the authors' assertions of equal plausibility but taken together they certainly amount to fundamental attack on the legitimacy and utility of nudging as a means of social control. 

In particular I find "libertarian paternalism" (Sunstein's words) very problematic. As I have argued elsewhere (here and here, for example), I find libertarianism rather too thin a gruel on which to nourish the body politic. Doctrinaire libertarianism, however, represents only a minor (albeit noisy) sliver of American political thought. Yet combining the vacuity of libertarianism with "Progressive" social policy frightens me. Oil and water do not ordinarily mix but given the right temperature and pressure they can be combined. And that's at least part of the warning sounded by McCrudden and King.

17 November 2015

A Break: "The Intern"

For any of my readers who have been bored by my posts about US recent Supreme Court bankruptcy decision, read on.

A few days we ago we went to see The Intern starring Robert De Niro and Anne Hathaway. We recommend it. De Niro as Ben Whittaker plays a retired and widowed former senior executive who responds to an ad for "senior interns" for an internet startup. He's hired and assigned to the frenetic (if a bit stereotypical) president/founder Jules Ostin (Anne Hathaway). Through the course of the film Jules comes to appreciate Ben's wisdom and the benefits of his experience in business and life. But rather than work through the movie myself, I'll let Drew Trotter, whose film criticism I respect, explain why The Intern is a good film: 
The Intern is a nice piece of light entertainment with some good comments on the benefit of experience in the marketplace, ageism and work, workaholism and family, women in the workplace, and attitudes toward work itself that make it a very good film for discussion. Anne Hathaway plays Jules Ostin, a no-nonsense fashion designer with good instincts who has created her own online fashion company called “About the Fit” and moved it to the size that the company needs to decide whether to hire a CEO from outside. Tensions arise from Ostin’s family commitments, her work commitments, her self-evaluation, and her employee relations that create crises small and large, which need to be resolved.
Enter Robert DeNiro as Ben Whittaker, a retired executive, who has grown bored with retirement. Whittaker applies for an internship at “About the Fit”, is hired, and after a brief time becomes Jules’s trusted assistant. Whittaker employees a solid work ethic, street smarts based on years of experience and simply patient, caring eyes and ears to solve the problems he can, give advice where appropriate and generally create the happy ending the film needed.
The Intern is a “modern” comedy in every way. Some of its advice will make the Christian cringe; some of the values simply taken for granted will not be those of a follower of Jesus. Overall, though, the film is a nice night out, or a nice night in front of the video monitor, and that is rare nowadays for comedies.
We agree fully with Drew's analysis and conclusion and so commend The Intern for your viewing pleasure. (Of course, the film's business conclusion--that Jules should remain as CEO of her growing startup--isn't equally commendable. Simply remember this is a comedy, about relationships and wisdom, not a B-school case study.)

16 November 2015

SCOTUS in Review: US Supreme Court Bankruptcy Cases 2014-2015 -- Part 4

A short post today but you can catch up by going to Parts 1, 2, and 3.

III. Chapter 13: The Effect of Conversion

Chapter 13 trustee Mary Viegelahn was holding over $5,500 in wage deductions awaiting distribution according to the debtor’s Chapter 13 plan when the debtor exercised his right to convert to a Chapter 7 proceeding.[1] The trustee nevertheless distributed the funds she held to creditors (including the debtor’s attorney and herself) according to the terms of the plan. The bankruptcy court granted the debtor’s motion for a refund and the district court affirmed, but the Fifth Circuit reversed, holding that “considerations of equity and policy” justified awarding the undistributed funds to the creditors instead of the debtor.[2]

The Supreme Court granted certiorari and unanimously reversed the Fifth Circuit. Writing for the Court, Justice Ginsburg held that a straightforward application of Bankruptcy Code §§ 541(a)(6) and 348(e), coupled with a modest extension of Bankruptcy Code § 348(f), mandated return of the debtor’s wages to him. That latter section, as restated by Justice Ginsburg, provides that

Property of the [Chapter 7] estate in the converted case shall consist of property of the estate [defined in Bankruptcy Code § 541(a)], as of the date of the filing of the [initial chapter 13] petition, that remains in the possession of or is under the control of the debtor on the date of conversion.[3]

The fact that the chapter 13 trustee actually controlled these funds was irrelevant because “conversion [from Chapter 13 to Chapter 7] terminates the service of [the Chapter 13] trustee.”[4] The trustee’s obligation to return the funds to the debtor had priority over any interests his creditors might have because his wages would not have been property of the estate under Bankruptcy Code § 541.[5] In brief, official actions taken by the trustee after conversion—after her term had ended—were at her peril.

[1] Bankruptcy Code § 1307(a) (“The debtor may convert a case under this chapter to a case under chapter 7 of this title at any time.”)
[2] Viegelahn v. Harris (In re Harris), 757 F.3d 468, 479–81(5th Cir. 2014). The Fifth Circuit’s decision conflicted with the Third Circuit’s opinion in In re Michael, 699 F.3d 305 (3d Cir. 2012).
[3] Harris v. Viegelahn, 135 S.Ct. 1829, 1837 (2015).
[4] Id.
[5] Bankruptcy Code § 541 reads as follows:
The commencement of a case . . . creates an estate. Such estate is comprised of all the following property, wherever located and by whomever held:
(6) Proceeds, product, offspring, rents, or profits of or from property of the estate, except such as are earnings form services performed by an individual debtor after the commencement of the case.

12 November 2015

SCOTUS in Review: US Supreme Court Bankruptcy Cases 2014-2105 -- Part 3

You can catch up by reading Part 1 here and Part 2 here. Today's installment retreats from constitutional law but still concerns a subset of the judicial power, this time the power (and appropriate circumstances) of appellate review.

II. Title 28: Finality and Appealability

Louis Bullard filed for relief under Chapter 13. He owned a multi-family dwelling in which he lived and on which Blue Hills Bank held a mortgage. The value of the property was substantially less than the amount owed on the bank’s mortgage. Bullard’s Third Amended Plan provided that, under Bankruptcy Code § 1322(b)(2), the bank’s secured claim would be reduced to the value of the property.[1] Bullard’s plan went on to provide under Bankruptcy Code § 1322(b)(5) that he would continue his full regular monthly payments to the bank but that the payments would be applied only to the secured portion of the bank’s claim. These payments would pay off the mortgage much more quickly than its original term, but not within the five years of the plan.

The bankruptcy court sustained the bank’s objection to this “hybrid” plan. Bullard appealed to the First Circuit Bankruptcy Appellate Panel, which held that this was not an appeal from a final judgment[2] but went on to grant leave for an interlocutory appeal.[3] The bankruptcy appellate panel, however, agreed with the bankruptcy court that Bullard’s plan could not be confirmed over the bank’s objection.

Bullard then appealed to the First Circuit Court of Appeals. The First Circuit dismissed the appeal for lack of jurisdiction because an order denying confirmation is not final and the bankruptcy appellate panel had not certified the matter for appeal.[4]

The Supreme Court granted Bullard’s petition for certiorari and unanimously affirmed the First Circuit.[5] Chief Justice Roberts began by observing the usual standard of finality for purposes of appeal: “In ordinary civil litigation, a case in federal district court culminates in a final decision a ruling by which a district court disassociates itself from a case.”[6] The Chief Justice went on to note that application of this definition is not straightforward in a bankruptcy case, which is composed of “proceedings” as well as discrete “cases”:

The rules are different in bankruptcy. A bankruptcy case involves “an aggregation of individual controversies,” many of which would exist as stand-alone lawsuits but for the bankruptcy status of the debtor. Accordingly, Congress has long provided that orders in bankruptcy cases may be immediately appealed if they finally dispose of discrete disputes within the larger case.[7]

Bankruptcy courts oversee the administration of an estate in which there may be a multitude of proceedings, which does not fit neatly into the historical model of a unitary case. Thus, Congress and the Court have recognized that the traditional requirement of finality must be relaxed in bankruptcy.  Even though bankruptcy involves administration as well as adjudication, the Court held that there must be some measure of finality to trigger the right to appellate review. Thus, denial of confirmation of a plan—so long as the debtor could file an amended one—was not sufficiently final:

The relevant proceeding is the process of attempting to arrive at an approved plan that would allow the bankruptcy to move forward. . . . When confirmation is denied and the case is dismissed as a result, the consequences are [] significant. . . . Denial of confirmation with leave to amend, by contrast, changes little. . . . “Final” does not describe this state of affairs. An order denying confirmation does rule out the specific arrangement of relief embodied in a particular plan. But that alone does not make the denial final . . . .[8]

The Court clearly had Chapter 11 in view when it brushed aside both the debtor’s and Solicitor General’s concerns that the asymmetry of permitting appeals of order of confirmation but denying the right to appeal from an order denying confirmation.[9] Disgruntled creditors can appeal while frustrated debtors cannot. While the result might work an unfair burden on chapter 13 debtors, whose resources are typically more limited than those of their creditors, the Court believed that power was more evenly balanced in chapter 11. The risk of opportunistic delays by chapter 11 debtors concerned the Court. As solace, the Court pointed to the ability of debtors to seek interlocutory review and stated its “confidence that bankruptcy courts, like trial courts in ordinary litigation, rule correctly most of the time.”[10]

[1] Bullard’s plan could modify the bank’s claim because it was not secured “only by a security interest in real property that is the debtor’s principal residence.” Bankruptcy Code § 1322(b)(2).
[2] Bullard v. Hyde Park Sav. Bank (In re Bullard), 494 B.R. 92, 96 (B.A.P. 1st Cir. 2013).
[3] See generally 28 U.S.C. § 158(a).
[4] In re Bullard, supra note 23, at 486 (“An order of an intermediate appellate tribunal affirming the bankruptcy court’s denial of confirmation of a reorganization plan is not a final order so long as the debtor remains free to propose an amended plan.”).  See generally 28 U.S.C. § 158(d).
[5] Bullard v. Blue Hills Bank, 135 S.Ct. 1686 (2015).
[6] Id. at 1691. (Citations and internal quotation marks omitted.)
[7] Id. at 1692. (Citation and internal quotation marks omitted.)
[8] Id. at 1692–93.
[9] Id. at 1693 (“Chapter 11 debtors, often business entities, are more likely to have the resources to appeal and may do so on narrow issues.”).
[10] Id. at 1695. Splits of authority exist with respect to the finality of orders in other situations . Compare Ekstrom v. S.S. Retail Stores Corp., 162 F.3d 1230 (9th Cir. 1998) (holding that order approving retention of attorneys for estate was not final) with Lambert v. Coan, 176 F.3d 610 (2d Cir. 1999) (holding that order approving retention of special counsel for estate was final). See also Cmt. of Dalkon Shield Claimants v. A.H. Robins Co., Inc., 828 F.2d 239 (4th Cir. 1987) (holding that order declining to appoint chapter 11 trustee was final and appealable).

The Aesthetics (!) of Contract Theory -- Part 3

Given the lengthy breaks between posts you might want to prime the pump by reading Part 1 here and Part 2 of this short series here. A very brief recapitulation. Co-authors Efi Zemach and Omri Ben-Zvi argue here that neither of the two leading theories of contract law can account for all the "facts" of that law without remainder. In other words, many of rules of contact law are consistent with furthering human autonomy (particularly the rules of contract formation) while others are better justified by considerations of utility or welfare maximization.

Autonomy and efficiency are thus pictures of the law (hence the authors' use of aesthetics in their title) but contract law cannot be derived from either of them. Autonomy and efficiency are merely lenses by which the otherwise bewildering array of of discordant rules of contract law can be brought into focus. Yet the narrowing effect of either len's focus inevitably omits significant amounts of material that is outside its field of vision. To paraphrase only slightly, contract law is not really a rigid grid of formal rules, nor is contract law a social force moving toward ever-increasing supply of subjective wealth; instead, we choose to see contract law as one or the other since that allows us to make sense of it.

As they proceed, Zemach and Ben-Zvi suggest a recently bruited solution to the tunnel-vision effects of autonomy or efficiency: Why not both?
Drawing on the notion that each theory contains genuine and valuable insights, but none is capable of explaining or justifying the complete normative sphere, pluralists have argued against the exclusiveness of a single approach, suggesting instead a synthesis of many principles.
This solution to the problem caught my eye. After all, I consider myself a pluralist of contract theory. (For examples of my pluralistic endeavors download Principled Pluralism and Contract Remedies (here) or Mission Possible: A Paradigm for Analysis of Contractual Possibility (here) or even Consideration in the Common Law of Contracts: A Biblical-Theological-Critique (here)). Nonetheless, the pluralism  to which Zemach and Ben-Zvi attend differs from mine.
While I ground my triperspectival approach to contracting and contract law in the covenantal relationship among God, creation, and human beings existing in/as images of God, Zemach and Ben-Zvi "focus on unprincipled pluralism, which holds that there is no meta-principle or overarching theory that determines a-priori which of the principles is superior when justifications collide." (Emphasis added.)

In any event, they paint in broad stroke the aesthetics of unprincipled pluralism:
Our analysis reveals that pluralism too rests on a single (one is tempted to say unitary aesthetic). The pluralist project is informed by a particular aesthetic vision. This aesthetic--the "dissociative aesthetic''--is responsible for pluralism's unique characteristics.
In other words, from an aesthetic perspective, pluralism is not pluralistic; it "is on equal terms with other first-order contract theories in the sense it is presented in a manner that presupposes a single aesthetic." Unprincipled pluralism's dissociative aesthetic, however unitary in description, is not unifying in effect, at least not immediately so. In practice, the dissociative aesthetic briefly suspends belief in any unifying theory and thus permits the lawyer or judge to freely associate the rules of law, which "allows us to begin with a 'clean slate' on which we proceed to construct our desired projects."

While I understand the point Zemach and Ben-Zvi are making, that good lawyers and judges can temporarily prescind from any theory they might otherwise hold, yet they must "put Humpty together again" when and as they reach a conclusion. Thus on my account even this dissociation and subsequent re-association is not unprincipled.

Or, perhaps better put, the principled version of pluralism I have described deploys pluralism for at least two reasons or ends. First, principled pluralism recognizes human finitude; in other words, no human-generated account of the phenomenon of contract law will ever be complete. Pluralism recognizes our limits when it comes to explaining anything, including contract law. Second, principled pluralism is more than a catch-as-catch-can means of bringing a disordered state of reality into momentary focus. It is instead an example of the relationship between practical and theoretical reason, phronesis and episteme. On the one hand, finite human beings can never fully get their hands around any phenomenon. On the other, the universe, including human activity, is ordered to an ultimate end. In short, pluralism of a principled sort is the best means of justifying and criticizing contract law.

This three-part account should be enough for anyone's taste. However, I have it on good authority that a response/rejoinder may be forthcoming so stay tuned.