Harvard’s Contracts Courses Ignore the Most Important Parts Of Contract Law Today: The End of Freedom of Contract and the Erosion of Tort Law

Our contracts courses are based on mythology. The Book Of Genesis for contracts goes a little something like this: 

“In the beginning, humans made deals with one another. When there is a true ‘meeting of the minds,’ humans shake hands, and the courts enforce that as a binding contract. Contracts make both parties better off by allocating goods efficiently between the two parties, thereby creating value. If John has 5 bushels of wheat, and Jane has 5 gallons of milk, each has too much wheat  or milk to consume by themselves, respectively. John contracts for some of Jane’s milk, Jane contracts for some of John’s wheat, and thereby the excess of wheat and milk is no longer excess, by utilized to its fullest extent. Voila, value is created.”

It’s a nice story. Unfortunately, this mythology little resembles contracts today. The overwhelming majority of today’s contracting looks a bit different: Continue reading “Harvard’s Contracts Courses Ignore the Most Important Parts Of Contract Law Today: The End of Freedom of Contract and the Erosion of Tort Law”

Our Professors Shouldn’t Engage In McCarthyism

Professor Cass Sunstein engaged in a blatant display of McCarthyism in his op-ed for Bloomberg View this week, in which he accused politicians to both the left and the right of him of Marxism.

Both Donald Trump and Bernie Sanders are using Marxist strategies, he argued, because their rhetoric “heightens the contradictions,” a quote directly from (dun dun dun) MARX!

Of course, when Marx talked about “heightening the contradictions” he meant that the contradictions inherent in capitalism must worsen in order to provoke the working class to rise up in revolt. In his view, small reforms that blunt the edge of capitalism would only prolong its existence. Continue reading “Our Professors Shouldn’t Engage In McCarthyism”