Legal Values: THEORETICAL FOUNDATIONS OF CONTRACT LAW
Citations: McGill
Double Space
Please pick one of these topics below to write a 6000-7000 word paper on, not including footnotes
The doctrine of consideration – can it be justified? on what grounds? should it be abolished?
Pre-existing duty and post-contractual modifications – can the traditional position be justified? can recent developments be squared with the doctrine of consideration? If not, what approach should be taken to post-contractual modifications?
Promissory Estoppel – what is the basis of/justification for this doctrine? Is the sword/shield distinction coherent? Should detrimental reliance be a requirement? Can the doctrine be squared with the doctrine of consideration? What is the significance of estoppel’s status as an equitable doctrine?
Privity – can this doctrine be justified? should it be abolished?
The Objective Test for Formation and Interpretation – can the objective test be justified? on what basis?
Unconscionability – what is the basis of/justification for this doctrine? what should its requirements be? can this doctrine be squared with the general rule that a court will not inquire into the adequacy of consideration? what is the significance of unconscionability’s equitable origins?
Liquidated Damages v. Penalties – what is the basis of/justification for the general rule that courts will not enforce penalties? is this justified or should the rule be changed?
Standard Form Contracts – can these contracts be squared with the idea that contract law is the law of voluntary obligations? are these contracts at all? can their enforcement be justified? if so, on what basis?
Frustration of Contract – what is the basis of/justification for this doctrine? what should its requirements be?
Fault – what role does and should fault play in contract law?
Good Faith in Performance – what is the basis of/justification for this doctrine? what should its requirements be? should be expanded beyond good faith in performance? should it include good faith in negotiations?
The Expectation Measure of Damages – what is the basis of/justification for the expectation measure of damages? why not have specific performance as the default? should courts award specific performance as a matter of course?
Punitive Damages – is there a role for punitive damages in contract law?
Further Instructions for Paper:
Example: What are the possible justifications for the doctrine of privity
As opposed to I believe the doctrine of privity should be abolished
Look at the arguments that have been made and develop the skill of criticizing them
A chunk of your paper is engaging with what people have said, why you do not agree with it, and then offer your take on it
So the first part is essentially a literature review –this can be half the paper (~3500 words)
Why or why not a set of arguments do not succeed
You can devote space in your paper to pick apart what is already on there, this is what makes it a scholarly paper
You may find people that you agree with which you talk about in the second art of your paper
You can start with critiques of the argument if you want to
Here’s what people are saying, here is why I disagree, here are some other arguments that support my thesis
You may also offer your own view, then give your own criticisms
Your own views are out in the literature, so might as well take those and cite them
Please let me know which topic you decide so I can send you my Professor’s notes on the topic.