CORNELL LAW SCHOOL LEGAL STUDIES RESEARCH PAPER SERIES THE MANY DIMENSIONS OF PRIVATE LAW Commentary on Stephen Waddams, Dimensions of Private Law: Categories and concepts in legal R easoning Robert a. hillman Cornell law School Myron taylor hall Ithaca. NY14853-4901 Cornell law School Research Paper No. 04-020 This paper can be downloaded without charge from The Social Science Research Network Electronic Paper Collection http://ssrn.com/abstract=589342
CORNELL LAW SCHOOL LEGAL STUDIES RESEARCH PAPER SERIES THE MANY DIMENSIONS OF PRIVATE LAW Commentary on Stephen Waddams, Dimensions of Private Law: Categories and Concepts in Legal Reasoning Robert A. Hillman Cornell Law School Myron Taylor Hall Ithaca, NY 14853-4901 Cornell Law School Research Paper No. 04-020 This paper can be downloaded without charge from: The Social Science Research Network Electronic Paper Collection: http://ssrn.com/abstract=589342
THE MANY DIMENSIONS OF PRIVATE LAW Commentary on Stephen Waddams, Dimensions of Private Law: Categories and Concepts in Legal reasonin Robert a. hillman Professor Stephen Waddams' new book emphasizes the many dimensions of private law and seeks to prove the inadequacy of simple explanations or categorizations of this law Waddams distrusts the divisions between public and private law, between property and obligations, and within obligations, between the concepts of contract, unjust enrichment, and wrongdoing. He believes, for example, that within the law of obligations, judges often apply concepts"concurrently and cumulatively to resolve issues, and that no single concept dominates. As a result, it is a mistake and misleading in many cases to label one case contract and another tort, for example, as if the former case solely concerns enforcing agreements, and the latter only wrongdoing. Consistent with this thesis, Waddams also explains that legal principles and policy perspectives generally complement each other, and that neither alone usually serves as the paramount reason for a decision Edwin h woodruff professor of law cornell law school thanks to Kevin clermont for comments jeff Rachlinski for suggestions and Emily Paavola and April Anderson for able research assistance [It has not been possible to explain Anglo-American private law in terms of any single concept, nor has any map, scheme, or diagram proved satisfactory in which the concepts are separated from each other, as on a two- dimensional plane. Dimensions of Private Law 226(2003). See also id at Vi. 3 Id at 225 see also id at 2 Id.at191.205
THE MANY DIMENSIONS OF PRIVATE LAW Commentary on Stephen Waddams, Dimensions of Private Law: Categories and Concepts in Legal Reasoning Robert A. Hillman* Professor Stephen Waddams’ new book emphasizes the many dimensions of private law and seeks to prove the inadequacy of simple explanations or categorizations of this law.1 Waddams distrusts the divisions between public and private law, between property and obligations, and within obligations, between the concepts of contract, unjust enrichment, and wrongdoing.2 He believes, for example, that within the law of obligations, judges often apply concepts “concurrently and cumulatively” to resolve issues, and that no single concept dominates.3 As a result, it is a mistake and misleading in many cases to label one case contract and another tort, for example, as if the former case solely concerns enforcing agreements, and the latter only wrongdoing. Consistent with this thesis, Waddams also explains that legal principles and policy perspectives generally complement each other, and that neither alone usually serves as the paramount reason for a decision.4 * Edwin H. Woodruff Professor of Law, Cornell Law School. Thanks to Kevin Clermont for comments, Jeff Rachlinski for suggestions and Emily Paavola and April Anderson for able research assistance. 1 "[I]t has not been possible to explain Anglo-American private law in terms of any single concept, nor has any map, scheme, or diagram proved satisfactory in which the concepts are separated from each other, as on a twodimensional plane." Dimensions of Private Law 226 (2003). See also id. at vi. 2 Id. 3 Id.at 225; see also id. at 2. 4 Id. at 191, 205
Waddams sets forth many reasons for what he refers to as the failure of "mapping"of private law. For example, he points out that, as circumstances change, judges must make decisions outside of existing frameworks. Further, Waddams explains that the historical division of courts of law and equity, with equitable concepts"cut[ing] across legal categories, "7 contributes to the laws conceptual disunity. In addition, he sees that courts exercise judgment in selecting relevant facts, that"[n]o map or scheme could possibly classify all imaginable facts, and that facts influence the formulation of rules In light of these and other reasons waddams believes efforts to simplify and clarify private law by categorizing or mapping the law generally backfire, only"distort[ing] an understanding " of the law Dimensions of private Lan is an excellent book. Waddams selects interesting and important examples from a wide array of legal decisions, helpfully collects them under chapter headings such as economic harms, physical harms, reliance, and so on, usefully points out the panoply of legal concepts and principles constituting the solutions to these issues, and generally convinces the reader of the many dimensions of private law. I confess that I am not a disinterested observer of Waddams'thesis, having weighed in myself on the combination of legal principles and theories that constitute contract law. I concluded that t]he various norms of contract law reflect the major social, economic, and institutional forces of a pluralistic societ TT]here is no consensus on what is to be mapped(facts, cases, issues, rules, reasons, categories, or concepts), on what is to be located on the map when drawn, or on whether the map is governed by the shape of the terrain, or vice versa. " Id. at 3 6 Id. at 13
2 Waddams sets forth many reasons for what he refers to as the failure of "mapping" of private law.5 For example, he points out that, as circumstances change, judges must make decisions outside of existing frameworks.6 Further, Waddams explains that the historical division of courts of law and equity, with equitable concepts “cut[ing] across legal categories,”7 contributes to the law's conceptual disunity. In addition, he sees that courts exercise judgment in selecting relevant facts, that "[n]o map or scheme could possibly classify all imaginable facts," and that facts influence the formulation of rules.8 In light of these and other reasons, Waddams believes efforts to simplify and clarify private law by categorizing or mapping the law generally backfire, only “distort[ing] an understanding” of the law.9 Dimensions of Private Law is an excellent book. Waddams selects interesting and important examples from a wide array of legal decisions, helpfully collects them under chapter headings such as economic harms, physical harms, reliance, and so on, usefully points out the panoply of legal concepts and principles constituting the solutions to these issues, and generally convinces the reader of the many dimensions of private law. I confess that I am not a disinterested observer of Waddams’ thesis, having weighed in myself on the combination of legal principles and theories that constitute contract law. I concluded that “[t]he various norms of contract law reflect the major social, economic, and institutional forces of a pluralistic society. 5 "[T]here is no consensus on what is to be mapped (facts, cases, issues, rules, reasons, categories, or concepts), on what is to be located on the map when drawn, or on whether the map is governed by the shape of the terrain, or vice versa." Id. at 3. 6 Id. at 13. 7 Id. 8 Id. at 14. 9 Id. at 226
Not only do these norms often clash, but they are themselves frequently internally inconsistent. It is no wonder that I am sympathetic to Waddams' thesis and see the deep value in a realistic description of the terrain of private law One of the many impressive things about Dimensions of Private Law is its scope and its ariety of insights. In the various chapters, not only does waddams illustrate how various concepts figure in decisions involving the diverse issues of private law, but he offers many other illuminating observations as well. For example, the book includes thoughtful discussions of how the factual background of cases help clarify the perceptions and reasons of judges; the disparate legal responses to contract and other wrongs; the difference between wrongdoing that is blameworthy and wrongdoing that entitles the victim to compensation; and how equity blurs the distinction between obligation and property through vehicles such as trusts Of course, in a book of the breadth of Dimensions of private Law, it would be unusual if a reader agreed with all of Waddams'assertions. For example, he appears to lump promissory estoppel with other forms of estoppel in his claim that estoppel is dependent on other concepts Robert A Hillman, The Richness of Contract Law 268(1997)(hereinafter Hillman, Richness) n Dimensions of Private Law at 38 For example, breaching parties generally cannot be enjoined or forced to return their ill otten gains 13d.at106
3 Not only do these norms often clash, but they are themselves frequently internally inconsistent.”10 It is no wonder that I am sympathetic to Waddams’ thesis and see the deep value in a realistic description of the terrain of private law. One of the many impressive things about Dimensions of Private Law is its scope and its variety of insights. In the various chapters, not only does Waddams illustrate how various concepts figure in decisions involving the diverse issues of private law, but he offers many other illuminating observations as well. For example, the book includes thoughtful discussions of how the factual background of cases help clarify the perceptions and reasons of judges;11 the disparate legal responses to contract and other wrongs;12 the difference between wrongdoing that is blameworthy and wrongdoing that entitles the victim to compensation;13 and how equity blurs the distinction between obligation and property through vehicles such as trusts.14 Of course, in a book of the breadth of Dimensions of Private Law, it would be unusual if a reader agreed with all of Waddams’ assertions. For example, he appears to lump promissory estoppel with other forms of estoppel in his claim that estoppel is dependent on other concepts 10 Robert A. Hillman, The Richness of Contract Law 268 (1997) (hereinafter Hillman, Richness). 11 Dimensions of Private Law at 38. 12 For example, breaching parties generally cannot be enjoined or forced to return their ill-gotten gains. See id. at 143. 13 Id. at 106. 14 Id. at 186
ecause it prevents a party from making certain assertions. The inference is that promissory estoppel means only that a promisor cannot claim the absence of consideration to support a promise. However, at least in the U.S., promissory estoppel now constitutes a separate and relatively distinct cause of action for detrimental reliance induced by a promise, and I think properly so. After all, positioning promissory estoppel as a separate theory allows courts to avoid distorting the doctrine of consideration by finding an enforceable bargain when the real reason for the decision is detrimental reliance on a promise. apparently for the sake of consistency Waddams seems to resist this characterization of promissory estoppel. 6 In fact, Waddams himself occasionally strays from his theme of the interrelatedness of concepts and the difficulties of categorization. For example, in his discussion of strict tort liability, Waddams describes compensation for harm as the principal justification for the theory and downplays public safety as an important factor. Waddams'main explanation is that other law creates incentives for manufacturers to produce safe products, as if laws cannot share policy goals. Even if Waddams' explanation is true, it contradicts his overall thesis Id. at 69 "The establishment of a fourth category of obligations, or consignment of the reliance cases to a separate ohiscellaneous'category, would scarcely resolve the difficulties because reliance has not been so much separate om the concepts of property, contract, tort, and unjust enrichment, as intimately linked with all of them. " Id at 79 "The purpose of imposing liability on the manufacturer.. has plainly been not primarily to deter or modify the manufacturers behavior, but to require it to compensate the injured plaintiff. Id at 10
4 because it “prevents a party from making certain assertions.”15 The inference is that promissory estoppel means only that a promisor cannot claim the absence of consideration to support a promise. However, at least in the U.S., promissory estoppel now constitutes a separate and relatively distinct cause of action for detrimental reliance induced by a promise, and I think properly so. After all, positioning promissory estoppel as a separate theory allows courts to avoid distorting the doctrine of consideration by finding an enforceable bargain when the real reason for the decision is detrimental reliance on a promise. Apparently for the sake of consistency, Waddams seems to resist this characterization of promissory estoppel.16 In fact, Waddams himself occasionally strays from his theme of the interrelatedness of concepts and the difficulties of categorization. For example, in his discussion of strict tort liability, Waddams describes compensation for harm as the principal justification for the theory and downplays public safety as an important factor.17 Waddams' main explanation is that other law creates incentives for manufacturers to produce safe products, as if laws cannot share policy goals.18 Even if Waddams' explanation is true, it contradicts his overall thesis. 15 Id. at 69. 16 “The establishment of a fourth category of obligations, or consignment of the reliance cases to a separate ‘miscellaneous’ category, would scarcely resolve the difficulties because reliance has not been so much separate from the concepts of property, contract, tort, and unjust enrichment, as intimately linked with all of them.” Id. at 79. 17 “The purpose of imposing liability on the manufacturer … has plainly been not primarily to deter or modify the manufacturer’s behavior, but to require it to compensate the injured plaintiff.” Id. at 100. 18 Id
But I do not want to dwell on such minor quarrels, because, as I have already made clear, I agree with Waddams' central theme, namely, the complexity of private law and the general failure of categorization. In the rest of this essay, I first set forth and expand upon but one of Waddams' many examples to illustrate his thesis. Then i briefly discuss some questions that Dimensions of private Law inspires: (1) In light of its inadequacies, what accounts for the popularity of conceptualizing private law?(2)What are the ramifications of the reality that private law is complex and multidimensional? (3)What new approaches to the study of decision making may shed light on the judicial process when judges confront multidimensional problems? An Example of Private Law,s Many Dimensions Waddams is careful never to claim that every case is complex. Rather, his strategy is to demonstrate that courts utilize a combination of concepts, principles, and policies to resolve many cases in so many different contexts that the reader cannot help but distrust any map of private law 20 In this section, I shall look at one example, to illustrate what Waddams shows over and over again. Because of the breadth of Dimensions of Private Law, Waddams does not spend much time on the problem of judicial policing of contracts for unfairness 21 Nevertheless, it is an excellent example of the complexity and many dimensions of private law Categories have"failed to account for many actual judicial decisions .. "Id at vi [ COurts, in attempting to accommodate 'life in all its untidy complexity, have in many cases not derived their conclusions from pre-existing conceptual schemes or maps. Id. at 3. The preceding chapters have drawn attention to a number of issues the resolution of which has not conformed to simple accounts of private law.. [S]uch cases have been neither infrequent, nor, from the point of view of the parties or of the public, insignificant. " Id at 223 21 See id at 164
5 But I do not want to dwell on such minor quarrels, because, as I have already made clear, I agree with Waddams' central theme, namely, the complexity of private law and the general failure of categorization. In the rest of this essay, I first set forth and expand upon but one of Waddams' many examples to illustrate his thesis. Then I briefly discuss some questions that Dimensions of Private Law inspires: (1) In light of its inadequacies, what accounts for the popularity of conceptualizing private law? (2) What are the ramifications of the reality that private law is complex and multidimensional? (3) What new approaches to the study of decision making may shed light on the judicial process when judges confront multidimensional problems? I. An Example of Private Law's Many Dimensions Waddams is careful never to claim that every case is complex.19 Rather, his strategy is to demonstrate that courts utilize a combination of concepts, principles, and policies to resolve so many cases in so many different contexts that the reader cannot help but distrust any map of private law.20 In this section, I shall look at one example, to illustrate what Waddams shows over and over again. Because of the breadth of Dimensions of Private Law, Waddams does not spend much time on the problem of judicial policing of contracts for unfairness.21 Nevertheless, it is an excellent example of the complexity and many dimensions of private law. 19 Categories have "failed to account for many actual judicial decisions . . . ." Id. at vi. 20 [C]ourts, in attempting to accommodate 'life in all its untidy complexity,' have in many cases not derived their conclusions from pre-existing conceptual schemes or maps." Id. at 3. "The preceding chapters have drawn attention to a number of issues the resolution of which has not conformed to simple accounts of private law. . . . [S]uch cases have been neither infrequent, nor, from the point of view of the parties or of the public, insignificant." Id. at 223. 21 See id. at 164
Waddams sees a combination of wrongdoing, consent, unjust enrichment, and policy at work in policing cases. I agree. Take for example judicial application of the unconscionability doctrine. As analysts have long pointed out, courts applying the principle examine the bargaining process to determine whether there has been any""procedural unconscionability, and they evaluate the adequacy of the exchange to determine whether it is" substantively unconscionable rocedural unconscionability constitutes wrongdoing by a party in many possible forms For example, a party's conduct may resemble(or satisfy the elements of) duress, fraud, or undue influence. In addition, a party's wrongdoing may involve hiding terms or drafting terms that it knows the other party cannot understand. But wrongdoing is not all that is going on in procedural unconscionability cases. They also involve the quality of a partys consent. Courts have little difficulty concluding that a party has not consented to a hidden or unclear term or to one that is the product of fraud or duress, or even conduct approaching these wrongs. Courts also consider the age, intelligence, business acumen, and bargaining power of the party asserting unconscionability in determining whether that party has consented to a term See, e.g., American Stone Diamond, Inc. v. Lloyds of London, 934 F. Supp 839,844(S.D. Tex. 1996)([T]he party asserting unconscionability of contract bears the burden of proving both the substantive unconscionability and the procedural unconscionability of the contract at issue. ) Arthur Allen Leff, Unconscionability and the Code-The Emperor's New Clause, 115 U Pa L Rev. 485, 487-488(1967) See, e.g, Hillman, Richness, supra note 10, at 138 See Robert A Hillman, Debunking Some Myths About Unconscionability: A New Framework for U.C. C Section 2-302, 67 Cornell L Rev. 1, 19(1981)
6 Waddams sees a combination of wrongdoing, consent, unjust enrichment, and policy at work in policing cases.22 I agree. Take for example judicial application of the unconscionability doctrine. As analysts have long pointed out, courts applying the principle examine the bargaining process to determine whether there has been any “procedural unconscionability,” and they evaluate the adequacy of the exchange to determine whether it is “substantively unconscionable."23 Procedural unconscionability constitutes wrongdoing by a party in many possible forms. For example, a party's conduct may resemble (or satisfy the elements of) duress, fraud, or undue influence. In addition, a party's wrongdoing may involve hiding terms or drafting terms that it knows the other party cannot understand.24 But wrongdoing is not all that is going on in procedural unconscionability cases. They also involve the quality of a party's consent. Courts have little difficulty concluding that a party has not consented to a hidden or unclear term or to one that is the product of fraud or duress, or even conduct approaching these wrongs.25 Courts also consider the age, intelligence, business acumen, and bargaining power of the party asserting unconscionability in determining whether that party has consented to a term.26 22 Id. 23 See, e.g., American Stone Diamond, Inc. v. Lloyds of London, 934 F. Supp. 839, 844 (S.D. Tex. 1996) (“[T]he party asserting unconscionability of contract bears the burden of proving both the substantive unconscionability and the procedural unconscionability of the contract at issue.”); Arthur Allen Leff, Unconscionability and the Code–The Emperor’s New Clause, 115 U. Pa. L. Rev. 485, 487-488 (1967). 24 See, e.g, Hillman, Richness, supra note 10, at 138. 25 Id. at 141. 26 See Robert A. Hillman, Debunking Some Myths About Unconscionability: A New Framework for U.C.C. Section 2-302, 67 Cornell L. Rev. 1, 19 (1981)
a clause is substantively unconscionable when it is too favorable to one party, so that the other party does not receive the fruits of the bargain. Courts investigating substantive unconscionability consider whether a contract or clause serves a reasonable purpose in the context or simply takes unfair advantage of a party 2 One classic example involves a clause in a contract that authorized a seller to reclaim all of the goods it sold to a purchaser if the purchaser defaulted on any single item- In the absence of a showing of the need for the clause because of unusual default risks, many courts would find such a clause unfair and unenforceable. 30 Enforcement of a substantively unconscionable term would unjustly enrich the favored party. For example, if a party pays $100 for a watch worth $5, I suspect most courts would find the seller's profit, not the product of entrepreneurial skill, but an unjust windfall Policy also plays an important role in both procedural and substantive unconscionability decisions. For example, courts consider whether a decision finding unconscionability overregulate and impinges on freedom of contract. Further, they must ask whether the dec will deter wrongful behavior or only drive transactors out of a market at the expense of those who want to contract Williams v. Walker-Thomas Furniture Co, 350 F. 2d 445 (D. C Cir. 1965)
7 A clause is substantively unconscionable when it is too favorable to one party, so that the other party does not receive the fruits of the bargain.27 Courts investigating substantive unconscionability consider whether a contract or clause serves a reasonable purpose in the context or simply takes unfair advantage of a party.28 One classic example involves a clause in a contract that authorized a seller to reclaim all of the goods it sold to a purchaser if the purchaser defaulted on any single item.29 In the absence of a showing of the need for the clause because of unusual default risks, many courts would find such a clause unfair and unenforceable.30 Enforcement of a substantively unconscionable term would unjustly enrich the favored party. For example, if a party pays $100 for a watch worth $5, I suspect most courts would find the seller's profit, not the product of entrepreneurial skill, but an unjust windfall. Policy also plays an important role in both procedural and substantive unconscionability decisions. For example, courts consider whether a decision finding unconscionability overregulates and impinges on freedom of contract. Further, they must ask whether the decision will deter wrongful behavior or only drive transactors out of a market at the expense of those who want to contract. 27 Id. 28 Id. 29 Williams v. Walker-Thomas Furniture Co., 350 F. 2d 445 (D.C. Cir. 1965). 30 Id
In sum, wrongdoing, consent, unjust enrichment, and policy are all at work in unconscionability decisions. Waddams' principal point is that this characteristic of judicial decision making repeats itself across the various domains of private law. After reading all of the examples, the reader cannot help but come away from Dimensions of Private Law suspicious of any classificatory system of private law. But, assuming Waddams is correct, what are the implications of the general failure of private-law categorizations? II. Questions to Pursue A. What Accounts for the Popularity of Categorizing Private Law? Undoubtedly, analysts believe in the process of categorizing law for many reasons. For mple, Waddams himself does not deny that at least some cases fit nicely within one category or another and that mapping can sometimes contribute to our understanding. Categorizing also sometimes helps guide courts and usefully restricts judicial prerogatives and imagination return to these subjects in the next subsection. Here I would like to focus on another important reason, one that theorists often may overlook Law is supposed to be clear, definite, and hence predictable, so that people can plan their business and personal lives. 2 Further, law should be objective and resistant to manipulation that 31 See infra notes 42-53, and accompanying text Hillman, Richness, supra note 10, at 161
8 In sum, wrongdoing, consent, unjust enrichment, and policy are all at work in unconscionability decisions. Waddams' principal point is that this characteristic of judicial decision making repeats itself across the various domains of private law. After reading all of the examples, the reader cannot help but come away from Dimensions of Private Law suspicious of any classificatory system of private law. But, assuming Waddams is correct, what are the implications of the general failure of private-law categorizations? II. Questions to Pursue A. What Accounts for the Popularity of Categorizing Private Law? Undoubtedly, analysts believe in the process of categorizing law for many reasons. For example, Waddams himself does not deny that at least some cases fit nicely within one category or another and that mapping can sometimes contribute to our understanding. Categorizing also sometimes helps guide courts and usefully restricts judicial prerogatives and imagination. I return to these subjects in the next subsection.31 Here, I would like to focus on another important reason, one that theorists often may overlook. Law is supposed to be clear, definite, and hence predictable, so that people can plan their business and personal lives.32 Further, law should be objective and resistant to manipulation that 31 See infra notes 42-53, and accompanying text. 32 Hillman, Richness, supra note 10, at 161
favors one group or another or that creates avenues for judges to usurp the legislature's prerogative to make new law. Conceding law's complexity is therefore problematic for those who believe in the rule of law. In my view, then, people believe in the efficacy of creating categories and conceptual frameworks in part because they believe law should be susceptible to such an analysis The psychological phenomenon known as cognitive dissonance may best describe what is going on here. People seek consistency in their beliefs, which leads them to ignore conflicting information. Further, when information conflicts with people's"core values, they especially seek to dismiss contradictory information.3 In short, we continue to categorize private law in part to mask the disconcerting truth of law's overall complexity Others have recognized the urge of legal analysts to suppress disturbing inconsistencies through legal fictions. For example, Lon Fuller saw that the criminal-law fiction that" everyone knows the law "hides the troubling reality that the law often punishes people who do not believe they are breaking a law. Fuller's inspiration for this conclusion was Pierre De tourtoulon It is an essentially human tendency to refuse to believe sad events and to invent happy ones. What the lawmaker sometimes tries to do is precisely this-to Id. at 16 See robert A Hillman, Contract Lore, 27 J Corp. L 507, 515(2002)(hereinafter Hillman, Contract Lore) Steven Hartwell, Legal Processes and Hierarchical Tangles, 8 Clinical L Rev. 315, 371 n 117(2002) Lon L. Fuller, Legal Fictions 84(1967)
9 favors one group or another or that creates avenues for judges to usurp the legislature’s prerogative to make new law.33 Conceding law’s complexity is therefore problematic for those who believe in the rule of law. In my view, then, people believe in the efficacy of creating categories and conceptual frameworks in part because they believe law should be susceptible to such an analysis. The psychological phenomenon known as cognitive dissonance may best describe what is going on here.34 People seek consistency in their beliefs, which leads them to ignore conflicting information. Further, when information conflicts with people’s “core values,” they especially seek to dismiss contradictory information.35 In short, we continue to categorize private law in part to mask the disconcerting truth of law’s overall complexity. Others have recognized the urge of legal analysts to suppress disturbing inconsistencies through legal fictions. For example, Lon Fuller saw that the criminal-law fiction that “everyone knows the law” hides the troubling reality that the law often punishes people who do not believe they are breaking a law.36 Fuller’s inspiration for this conclusion was Pierre De Tourtoulon: It is an essentially human tendency to refuse to believe sad events and to invent happy ones. What the lawmaker sometimes tries to do is precisely this–to 33 Id. at 160-64. 34 See Robert A. Hillman, Contract Lore, 27 J. Corp. L. 507, 515 (2002) (hereinafter Hillman, Contract Lore). 35 Steven Hartwell, Legal Processes and Hierarchical Tangles, 8 Clinical L. Rev. 315, 371 n. 117 (2002). 36 Lon L. Fuller, Legal Fictions 84 (1967)