Some new papers on contracts (and their limits)…
A quick shout-out for two papers of interest to contracts geeks and their fellow travelers.
The first is from my one-time classmate Dan Schwartcz (University of Minnesota) entitled “The British Approach to Consumer Financial Disputes.” Here’s the abstract:
Much of insurance law and regulation is concerned with compensating consumers who have been wrongly denied coverage. But policyholders nonetheless have relatively few realistic options for challenging an insurer’s adverse coverage determination. Litigation is often too slow and costly for those who have recently suffered significant financial loss. Meanwhile, the alternative dispute resolution options that do exist – such as the mediation services that insurance regulators offer or the existing variants of insurance arbitration – are generally either ineffective or unavailable for most disputes. This Article proposes a new way forward by looking to the United Kingdom’s innovative Financial Ombudsman Service, which operates in parallel to the British regulatory agency and is devoted solely to resolving consumer financial disputes. It argues that the comparative success of the Financial Ombudsman Service is attributable primarily to the ways in which it blends elements of the individual, uncoordinated insurance ADR schemes that are used in America. As such, the Article concludes that American lawmakers can significantly improve insurance compensation by strategically rethinking the institutional architecture of insurance dispute resolution. It also sugges pts that the British Financial Ombudsman Service may offer a model for improving consumer dispute resolution in realms beyond insurance.
The paper is a good piece of comparative work, in effect showing how the Brits arrangement familiar ADR devices in some useful and unexpected scheme. The other piece by Jeff Lipshaw (Suffolk) is at the opposite end of theoretical spectrum, offering Jeff’s response to Seana Shiffrin’s foray along the fault lines of contract and promise. Here is his abstract for “Objectivity and Subjectivity in Contract Law: A Copernican Response to Professor Shiffrin”:
This is a response to Seana Shiffrin’s recent and important contribution to the continuing debate whether there is a universal moral or economic truth at the heart of contract law. Her most significant advance toward a general theory of promise and contract is not, however, her analysis of the divergence of morality and contract, but instead her identification of the critical moment at which the interposition of the public in a private matter occurs or is contemplated. This essay carries that theme forward, suggesting that a universal justification for contract law is not possible because the law, by its very nature, objectifies (publicly or with that implicit threat) what was heretofore a private relationship.
I always find Jeff’s work on contract theory interesting, although unlike Jeff — and most scholars of contract I might add — I am less pessimistic about the prospects for explaining and justifying contract law, even if I don’t contemplate anything so grand as a “universal justification for contract law.”