PHILOSOPHY AND THE LAW
Philosophy 345 Winter, 2020
POSSIBLE PAPER TOPICS (I)
Below are 13 possible paper topics about Fried’s Contract as Promise. You are encouraged to formulate and pursue your own topic (with my permission):
- Fried admits that several kinds of promises (e.g., those pertaining to marriage) neither are nor ought to be enforced by law. Is this admission a devastating objection to his overall theory of contract as promise? Why or why not?
- Is Fried persuasive that purely executory agreements (that is, those without reliance by the plaintiff or benefit to the defendant) should be enforced by contract law? Why or why not? Would contract law be improved if these agreements were legally enforceable?
- What is the most plausible alternative to the view that contract law should be understood by reference to promises? Does Fried offer adequate reason(s) to reject this alternative?
- Fried pays almost no attention to (the conventions that describe) how people actually make Does this failure create problems for his theory? Why or why not?
- Why does Fried think it is wrong to break a promise? Is he correct or incorrect? Do the details of an answer really matter for his overall theory of contract as promise?
- Examine the cases in Chapter Two in which Fried contends that expectancy is not the correct measure of damages even though a promise has been made and a promise has been broken. Is he correct or incorrect about some or all of these cases? Do the exceptions to expectancy swallow the rule to a greater degree than he admits?
- Can you do better than Fried in providing a principle to describe the conditions under which nondisclosure amounts to bad faith?
- Is Fried correct that courts can resolve disputes involving bad faith in the performance of agreements by a reasonable interpretation of what the parties actually agreed? If so, why does he seem to think we need to decide cases of nondisclosure in the making of agreements by resorting to non-contractual principles, that is, to principles of fairness? Or does he think both types of nondisclosure are amenable to a similar analysis?
- Is Fried persuasive about how he would limit the application of principles of sharing to fill gaps in contracts without descending into “full sharing,” (i.e., socialism)?
- Do any of the alternatives Fried mentions to identify a baseline to distinguish non-coercive offers from coercive threats help to resolve case VII on p.96? Why or why not? In what ways, if any, is this case unusual (and unlike cases IV-VI)?
- Is the normative baseline Fried identifies to distinguish offers from threats problematic (apart from its application to cases of blackmail)?
- Is Fried’s position on bad Samaritans (pp.109ff) consistent or inconsistent with his general position according to which contract law does and should enforce promises? Can and should systematic injustice be handled differently from temporary emergencies?
- In the footnote on p.125, Fried describes a case in which he admits that “my powers of rationalization give out.” Can you help him resolve the case that puzzles him?
- Does an alternative to Fried’s general theory of contract as promise emerge anywhere throughout the pages of his book? Does a better alternative exist? If so, what is it, and in what ways is it better or worse than Fried’s general theory?