Stewart Macaulay

Readings in the economics of contract law: Non-contractual relations in business: a preliminary study

Most larger companies, and many smaller ones, attempt to plan carefully and completely. Important transactions not in the ordinary course of business are handled by a detailed contract. For example, recently the Empire State Building was sold for

The New Legal Realism: Translating Law-and-Society for Today's Legal Practice

65 million. More than 100 attorneys, representing thirty-four parties, produced a 400-page contract. Another example is found in the agreement of a major rubber company in the United States to give technical assistance to a Japanese firm. Several million dollars were involved and the contract consisted of eighty-eight provisions on seventeen pages. The twelve house counsel – lawyers who work for one corporation rather than many clients – interviewed said that all but the smallest businesses carefully planned most transactions of any significance. Corporations have procedures so that particular types of exchanges will be reviewed by their legal and financial departments. More routine transactions commonly are handled by what can be called standardized planning. A firm will have a set of terms and conditions for purchases, sales, or both printed on the business documents used in these exchanges. Thus the things to be sold and the price may be planned particularly for each transaction, but standard provisions will further elaborate the performances and cover the other subjects of planning. Typically, these terms and conditions are lengthy and printed in small type on the back of the forms. For example, twenty-four paragraphs in eight-point type are printed on the back of the purchase order form used by the Allis Chalmers Manufacturing Company.

Legal R/realism and Jurisprudence: Ten Theses

This is the Table of Contents for The New Legal Realism: Translating Law-and-Society for Todays Legal Practice Volume I.

Non-contractual relations in business

At Oxford, Salmond on Torts had been my favorite textbook (Salmond 1953). It was a conventional, lucid, expository work. Shortly after I had graduated in 1955, a solicitor specializing in personal injuries told me to forget what I had learned in the books because nearly all of his cases were settled out of court with an insurance company or the Motor Insurers’ Bureau involved. Anyway, he said, the system needed drastic reform. I suffered culture shock. So I began to wonder: how could one understand the law relating to personal injuries if one knows nothing about insurance, settlement, the damages lottery, and alternatives to the common law action for negligence? I felt misled, let down, even betrayed by Salmond and my teachers. This is a common complaint by students in most modern legal systems. Of course, I was naı̈ve, for no one in Oxford had claimed that what they were offering was in any way realistic. Brian Leiter cites a colleague as saying: “Anyone teaching constitutional law who discusses only the doctrine is guilty of educational malpractice” (Leiter 2003, citing Powe 2001). That was how I felt about Torts. But the context in England was different. When I complained, I was met with standard, complacent answers: