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Judges decide multiple types of disputes, including disputes involving the property or contractual rights of two private parties (their 'private rights'). The nature of these private rights has long been the focus of philosophical debates between conventionalists, non-conventionalists, and Kantians. In this paper, I offer an argument in favour of the adoption of a legalist concept of private rights by judges and lawyers involved in private law disputes. According to private law legalism, judges and lawyers should see these rights as purely legal rights that do not reflect any pre-existing moral entitlements but are simply the upshots of positive law. The reason for adopting this legalist view is that it contributes to the rationality, predictability, and stability of legal reasoning, as well as to an appropriate evaluative stance towards positive law. Thus understood, the argument for legalism is not an argument about the nature of private rights, but about the conception of such rights that participants in private law reasoning ought to adopt. [ABSTRACT FROM AUTHOR]

Private ordering – where private actors regulate, enforce, and resolve disputes on their own – has in recent years expanded across business, commercial, and financial sectors. Parties have economic and reputational incentives to take this approach over adjudication by the courts. Parties may prefer private ordering for reasons of process, substance, or both. Even when disputes come before them, courts often defer to parties' private ordering. Their rationale is that the parties possess a stronger understanding of their intentions than do the courts. This strong assumption, however, depends on parties' knowledge and relative bargaining strength. In many instances, parties operate under incomplete or imperfect information; additional information could allow parties to enter into more efficient and more fair agreements ex ante, while better informing courts' approach to adjudicating disputes arising from private ordering ex post. The emergence of artificial intelligence (AI) in legal technology – specifically, in its ability to analyse vast amounts of data – can help advance this augmented informational objective. If made broadly accessible, AI has the potential to equalize information and bargaining power between parties. An empirical evaluation of the validity of assumptions that underpin the general support for private ordering can also be instructive for judges. For this reason, courts have an important role to play in the evolution of private law. Their ability to understand and harness AI can lead in the short term to more effective judicial oversight with respect to private ordering. Over the long term, courts can empower parties to make more informed choices when interacting with one another, reducing inefficiencies and rents. [ABSTRACT FROM AUTHOR]

Since contracts form a basic institution of every legal order, the interdisciplinary orientation of concepts of contracts reveals socio-legal inclinations of a legal order more broadly. Contrasting the UK and US Common Law of contracts with developments under German law, this Article examines the relation between normative and social science approaches, notably rooted in economics, economic sociology, and social theory in the genealogy of contract law. A shared leitmotif over the 20th century has been the drive to account for the societal embeddedness of contract. However, conceptualizations of "Contract and Society" differ considerably between legal orders in their disciplinary ingredients and design. In the US, and to a lesser extent also in the UK, the rather continuous reception of legal realism has paved the way for broad interdisciplinary perspectives on contract law, ranging from classical socio-legal, empirical work (e.g., Macaulay), economics (e.g., Williamson), sociology (e.g., Powell), and critical theory (e.g., Kennedy) to today's landscape, where essentially instrumental and ideal-normative theories compete. Alternatively, in Germany, where the realist heritage was more ephemeral, the transformations of contract law were processed from within legal discourse and foremost in their effects on private autonomy as conceptualized, for example, in German idealism, discourse theory and critical theory. Similarly, the "constitutionalization" of contract law—even if championed for fostering private law's reflexivity—has, for the most part, defied a socio-legal orientation. Finally, the Article highlights the path dependencies with which these different starting points translate in current debates around the role of contract in transnational governance. [ABSTRACT FROM AUTHOR]

Contract is a central trope in the organization of modern society. For too long, contract theory has avoided presenting a justification of contract that is ambitious enough to account for this centrality. Happily, this situation is changing, as private law theory is in the midst of refiguring the relationship among contracts, markets, and morality. Recently, a number of unrelated works have advanced both explanatory and justificatory arguments that draw tight connections among the three. Despite divergent starting points and theoretical predilections, the theories converge in characterizing the way that markets value everything in their orbit: impersonally, diffusely, and abstractly. They posit a common vision of the market in which value emerges without coordination, without discussion, and without agreement as to its meaning, motive, or cause. This article analyses these theoretical innovations, offers a brief critique, and then develops a more ambitious alternative. It suggests that contracting in markets can be a site of reasoned discussion about what the market should achieve rather than exclusively a single-minded means to maximize returns. Markets are at times an opportunity to recruit others to our projects, not only because they are financially profitable but also because they are normatively attractive. And that recruiting is a form of politicizing markets by exercising voice without invoking the need for public command. The market itself can be a site of collaborative ventures that accentuate self-government rather than bracketing value. [ABSTRACT FROM AUTHOR]

Who should create default commercial rules? Should they be created in a constructivist way or should they be created rather through a spontaneous order? Should Kelsen's positivism prevail in commercial law? Drawing on diverse libertarian literature, I will argue that, since courts do not play a dominant role in civil law countries and, more importantly, do not set precedents, default commercial rules should not be created by the legislator, but through the Lex Mercatoria. [ABSTRACT FROM AUTHOR]

In private law theory and in international trade law alike, a new strand of scholarship has emerged in recent years. This strand is characterized by a focus on market actors who are excluded from deals struck by other parties and suffer economic hardship as a result. Scholars have also focused on doctrines and legal concepts apt to identify this type of hardship and to provide non-parties with justiciable claims and remedies. Private-law and trade-law scholars involved in this mode of research are often moved by justice concerns and by the realization that rules based solely on the enforcement of bilateral deals may be structurally antithetical to a progressive distribution of resources. Towards the goal of contributing to this literature, I draw inspiration and materials from comparative private-law theory. I then review a range of private law doctrines designed to protect non-parties from the negative externalities of discrete agreements and show how the use of private law analogies in the context of trade theory yields both analytical payoffs and normative caveats. I conclude that the ongoing attempts to identify, within the framework of international trade law, actionable remedies in favor of non-parties to trade agreements are analytically helpful, but remain distributionally ambivalent and need stronger normative vectors. [ABSTRACT FROM AUTHOR]

In this Article, I conduct a long overdue assessment of Henry Maine's "from Status to Contract" thesis in light of two essentially modern phenomena: contract standardization and relational contracting. Drawing on comparative legal history, classical sociological and anthropological literature, contemporary contract law theory, and recent works in the field of (behavioral) law and economics, I discuss the claim that modern private law is witnessing a reverse movement "from Contract to Status." I show that this claim is historically inaccurate and conceptually simplistic in that it attributes shades of meaning to status that Maine never contemplated. I dedicate the remainder of the Article to exploring why-in the face of clear countervailing evidence-modern private law scholars continue to engage in Mainean "status"-speak. For this purpose, I tease out several interesting parallels between status as part of Maine's theory and "status" as part of modern private law discourse. I firstly suggest that scholars mirror Maine's thesis with their argument that interpersonal rights and obligations frequently result from naturally occurring societal processes that the law normatively reflects; conversely, that said rights and obligations are not necessarily the result of private-autonomous agreements between freestanding individuals. While this argument strikes me as plausible, the conceptual problems that transplanting Maine's categories into contemporary private law discourse entails call for additional justification. I therefore, secondly suggest that it is the directional appeal of Maine's linear or absolutist view that has led modern private law scholars to engage in Mainean "status"-speak. In order to assess the defensibility of this claim, I consider whether the "from Status to Contract and back again" thesis has any merit. Are we witnessing a reverse movement from the mostly privateautonomous creation of contractual rights and obligations to the heteronomous imposition of such rights and obligations on the part of society or the state? To answer this question, I examine a variety of conceptual forces struggling for dominance in modern private law. Two complementary tensions present themselves as relevant to my discussion: the tension between freedom of contract and constitutional paternalism, and the tension between perfect contracting solutions and second-best alternatives. I go on to show that "status"-like elements-i.e., elements that play on the rhetoric and directionality rather than the substance of Maine's thesis-and contractual elements interact to mediate both tensions. Linear (or absolutist) and dialectical (or "pendulum swing") theories of socio-legal evolution consequently fall short. Mainean "status"-speak is equally unable to account for the conceptual interaction that my discussion brings to light. To clarify any such interaction between "status"-like and contractual elements, I introduce, explain, and to some extent defend, two hybrid types-contract-status and status-contract. These hybrid types, I argue, go some way toward capturing current tendencies in modern private law. Inconsistencies, however, remain even if we reconstruct modern private law along the lines of contract-status and status-contract. Hence, I call for an update of modern private law's terminological toolbox. To this end, it is imperative to draw on Maine's very own methodological postulates. Contemporary scholars intent on saying anything of interest about modern private law would thus be welladvised to emulate Maine's approach of combining empirical inquiry into economy and society with categories and concepts from the realm of legal theory-all the while freeing themselves from the overbearing influence of his original, loaded categories. In light of these exhortations, I look at one final answer to the question of why modern jurists continue to engage in Mainean "status"-speak. Might increasing references to Maine's conceptual categories be evidence of a rediscovery of the value of macro-historical approaches for engaging critically with (private) law as a fundamental social institution? I contend that employing such macro-historical approaches is indeed necessary if modern jurists are to take seriously their duties as members of the legal profession, as participants in a broader intellectual and academic discourse, and as citizens of their respective societies. [ABSTRACT FROM AUTHOR]

The article discusses the regulation of contracts under American law in relation to the author's proposal of an additional theory of public responsibility which is designed to safeguard public values that are not protected by the reciprocal consent of private parties to a contract. Social justice and correlative rights are addressed, along with individual liberty in private law, contract remedies, and private rights in the U.S. Property rights and the moral aspects of obligations are assessed.

This paper focuses on contract law as a central field in contemporary regulatory practice. In recent years, "governance by contract" has emerged as the central concept in the context of privatization, domestic and transnational commercial relations, and law-and-development projects. Meanwhile, as a result of the neo-formalist attack on contract law, "governance of contract" through contract adjudication, consumer protection law, and judicial intervention into private law relations has come under severe pressure. Building on early historical critique of the formalist foundations of an allegedly private law of the market, the paper assesses the current justifications for contractual governance and posits that only an expanded legal realist perspective can adequately explain the complex nature of contractual agreements in contemporary practice. The paper argues for an understanding of contracts as complex societal arrangements that visibilize and negotiate conflicting rationalities and interests. [ABSTRACT FROM AUTHOR]