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Party Sophistication and Value Pluralism in Contract

By   /  October 21, 2013  /  Contracts, Featured 

Contract

In a previous article, Contract Law, Party Sophistication and the New Formalism, I documented a trend in United States case law and scholarship that fashions a “dichotomy between sophisticated and unsophisticated parties.” That article set out to explain the trend as a theoretical compromise between formalism and realism in the face of a resurgence of formalism (the “new formalism”). For sophisticated parties, “freedom of contract” and literalism have come to trump all normative concerns. For unsophisticated parties, fairness concerns outweigh the principle of autonomy. However, as I noted in the previous article, the “new formalism” may not be formalism at all because it retains normative concerns. Indeed, the shift in legal thought may be more appropriately and simply characterized as embracing pluralism. This piece will place observations about party sophistication within recent scholarship discussing pluralist conceptions of contract doctrine and suggest that the focus on sophistication is a means to order contract law’s competing values.

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Latest

Party Sophistication and Value Pluralism in Contract

By   /  March 20, 2013  /  Contracts, Featured 

Contract

“Pluralism” is not readily defined. The term here is intended to refer to “value pluralism.” Broadly, in the words of Isaiah Berlin, this is recognition of “the fact that human goals are many, not all of them commensurable, and in perpetual rivalry with one another.” As applied to contract law, pluralist theories “advert to autonomy, efficiency, morality, social norms, policy, experience, and other values to explain and justify contract doctrines.”

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