Article On Formal Elements of Contract and Fiduciary Law

Emily L. Sherwin (Professor, Cornell University Law School) recently published an article entitled, Formal Elements of Contract and Fiduciary Law, Cornell Law School Research Paper No. 15-25. Provided below is an excerpt from the article:

A central dilemma of private law is how to reconcile general rules with particular justice. Determinate general rules, consistently applied by courts in adjudication of disputes, allow private actors to coordinate their actions and minimize errors of judgment. At the same time, determinate rules are almost always overinclusive: in some of the cases to which they apply the results they prescribe are wrong, all things considered. If the rule is well-designed, most actors will do better over the long run by following the rule than they would by exercising their best judgment case-by-case. Some actors might outperform the rule, but not all actors will judge correctly whether they fall into this category – all actors, including mistaken actors, believe that whatever their best judgment recommends is best. It follows that the rule will be most effective if all actors understand that it will be enforced in all cases that fall within its terms. Yet, in some of those cases enforcement will not be just: judges will be asked to enforce a rule that ought not apply to the case before the court.