Interview of Stewart Macaulay and Bill Whitford by Bill Clune, Tuesday, May 29, 2018
Date
2018-05-29
Abstract
The Contracts Law in Action materials and coursebook grew out of other contracts books that emphasized law in action/ legal realism, such as Macneil, Kessler & Sharp, and Fuller. A law in action approach to contracts can be understood as an empirically-oriented alternative to casebooks that feature contract-formation (offer, acceptance, etc.) and doctrinal analysis. The Macaulay/ Whitford book begins with remedies which severely constrain the empirical odds of successful litigation. Lawsuits based on lost profit (“you promised to give me money”), or expectation damages, almost never succeed because of a variety of defenses, such as the obligation to mitigate damages, reasonably foreseeable damages, and others. The rule that successful parties do not recover the costs of litigation means that many recoveries are not financially worthwhile. Restitution as a remedy is based on a distinct conception of damages (restoration of losses). Other law-in-action themes are relational contracts, inconsistency of doctrines (doctrine and counter doctrine), the contextual background of cases, and the dominance of more powerful parties. Relational contracts between parties whose transactions are embedded in ongoing relationships, such as employment, marriage, and commercial supply agreements, are based on trust rather than legalities, and disputes are usually resolved through negotiation rather than litigation. Inconsistency of contract doctrines (doctrine and counter doctrine) increases the uncertainty of recovery. Research on the contextual background of cases reveals unanticipated consequences, strong arguments neglected on appeal, and multiple rounds of judicial and legislative maneuvers that result in mixed or unclear success by the winner of a single case. The dominance of one party to contracts, characteristic of consumer transactions and employment, means that consent of the less powerful party is a formality, and the more powerful party has virtually all practical rights and remedies (including binding arbitration). The Wisconsin progressive tradition can be seen in attention to cases and legislation that attempt to redress imbalances of power (e.g., restrictions on do not compete clauses, automotive lemon laws) which are sometimes successful but often unsuccessful because of the legislative and judicial influence of powerful elites in legislatures and courts.
