Click here for a short clip from Judge Frank Easterbrook. Really. It's only a minute 39 seconds and it's rare to see a judge at such a senior level (United States Court of Appeals for the Seventh Circuit, sitting in Chicago) demonstrate such passion.
Justice is an "empty concept," it has "no content," and Judge Easterbrook is furious whenever it rears its "ugly head." Well, other than that Mrs. Lincoln, how did you enjoy the play?
Several thoughts. First, there's not a whole lot than can be argued cogently in 99 seconds, and we should cut Easterbrook some slack for failing to provide a well-rounded demonstration for his conclusion that justice has no place in contract law. But Easterbrook is really bright and he provides enough of an argument to criticize.
First is the question of legitimacy. If contract law (not necessarily the social practice of bargaining for the exchange of goods and services) has no connection to justice, why are we willing to expend public resources to interpret contracts and ultimately utilize public officials to vindicate a judgment that a contract has been breached? I pursued the answer to the "legitimacy question" at length here. For Easterbrook the answer would run along the line that state sanctions for breach of contract increase public welfare (i.e., wealth maximization is the chief end of the law); he's a rule-utilitarian. But who says that wealth maximization should be the purpose of the law? In any event, for Easterbrook, without coming out and saying so explicitly, a net increase in public welfare amounts to justice, and I believe a reading of some of his opinions confirms this to be the case.
Second, long-established rules of contract law incorporate substantive conceptions of justice. At the front end are defenses to contract formation like fraud, mistake, duress, and the like. We can see midstream justice-oriented rules like the doctrines of implied terms, constructive conditions of exchange, material breach, impracticability/frustration, etc. Finally, at the back end, so to speak, we see limits on remedies and excuse of conditions that would otherwise constitute a forfeiture. Party autonomy (what I prefer to call liberty; take a look here) may get the contractual ball rolling but the "ugly head" of justice is threaded all along the way to judicial enforcement. And lest we forget, the law has long provided a remedy "off the contract" for parties who "unjustly enriched" (oh, the horror!) another in connection with a failed contract. (Quantum meruit, anyone?)
But what of Judge Easterbrook's concerns that courts might impose one of a variety of competing conceptions of justice to re-write the parties' agreement? What of it? Judges make foolish decisions all the time and we don't therefore get rid of the office. For what it's worth, justice (specifically its commutative form) is the formal cause by which courts have the authority (not merely the power) to vindicate breached contracts with a legal remedy. Enforcing that to which the parties agreed (cabined by the sorts of doctrines noted above) is the just thing to do.
More could be said but I hope this is enough.
Justice is an "empty concept," it has "no content," and Judge Easterbrook is furious whenever it rears its "ugly head." Well, other than that Mrs. Lincoln, how did you enjoy the play?
Several thoughts. First, there's not a whole lot than can be argued cogently in 99 seconds, and we should cut Easterbrook some slack for failing to provide a well-rounded demonstration for his conclusion that justice has no place in contract law. But Easterbrook is really bright and he provides enough of an argument to criticize.
First is the question of legitimacy. If contract law (not necessarily the social practice of bargaining for the exchange of goods and services) has no connection to justice, why are we willing to expend public resources to interpret contracts and ultimately utilize public officials to vindicate a judgment that a contract has been breached? I pursued the answer to the "legitimacy question" at length here. For Easterbrook the answer would run along the line that state sanctions for breach of contract increase public welfare (i.e., wealth maximization is the chief end of the law); he's a rule-utilitarian. But who says that wealth maximization should be the purpose of the law? In any event, for Easterbrook, without coming out and saying so explicitly, a net increase in public welfare amounts to justice, and I believe a reading of some of his opinions confirms this to be the case.
Second, long-established rules of contract law incorporate substantive conceptions of justice. At the front end are defenses to contract formation like fraud, mistake, duress, and the like. We can see midstream justice-oriented rules like the doctrines of implied terms, constructive conditions of exchange, material breach, impracticability/frustration, etc. Finally, at the back end, so to speak, we see limits on remedies and excuse of conditions that would otherwise constitute a forfeiture. Party autonomy (what I prefer to call liberty; take a look here) may get the contractual ball rolling but the "ugly head" of justice is threaded all along the way to judicial enforcement. And lest we forget, the law has long provided a remedy "off the contract" for parties who "unjustly enriched" (oh, the horror!) another in connection with a failed contract. (Quantum meruit, anyone?)
But what of Judge Easterbrook's concerns that courts might impose one of a variety of competing conceptions of justice to re-write the parties' agreement? What of it? Judges make foolish decisions all the time and we don't therefore get rid of the office. For what it's worth, justice (specifically its commutative form) is the formal cause by which courts have the authority (not merely the power) to vindicate breached contracts with a legal remedy. Enforcing that to which the parties agreed (cabined by the sorts of doctrines noted above) is the just thing to do.
More could be said but I hope this is enough.
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