Boston University School of Law

The Baby and the Bath Water: The American Critique of European Contract Law

Daniela Caruso

Paper presented at the conference "Postnational Rulemaking between Authority and Autonomy," Amersterdam, September 20-21, 2012

American Journal of Comparative Law, Volume 61, Issue 3 (2013)

Boston University School of Law Working Paper 12-43
(August 24, 2012, rev. 10-9-12)


This paper aims to contribute to a larger research agenda concerning the possibility of meaningful transatlantic dialogue about private-law reform. Both the European Union and the United States regulate private autonomy extensively. In spite of contextual similarities, there are several barriers making dialogue among legal scholars difficult. In particular, the conversation about social justice, an important element of private law reform within the European Union, is now quite marginal in American contract law scholarship. In U.S. legal academia, social justice is a matter for moral philosophers, development economists, and constitutionalists. Against this background, this paper takes a close look at a recent transatlantic exchange in matters of private law reform – a Chicago Law School conference on a proposed Common European Sales Law – and identifies a few counter-intuitive points of convergence between U.S. and European scholarship.  Along the way, the paper also highlights structural and discursive incompatibilities, but concludes that the dialogue is, as a whole, valuable and should be kept alive.

In designing a post-national architecture of autonomy, Europe may draw better lessons from U.S. regulatory experiences if it deconstructs, first, the wholesale pro-market rhetoric of otherwise relevant literature. When this is done, the payoffs of American commentaries become more appreciable. Taking the lead from some Chicagoan insights, this paper recommends customizing the empirical investigation of EU markets so as to factor socio-economic asymmetries into the equation of private law reform.


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Contact Information

Daniela Caruso

Boston University School of Law
765 Commonwealth Avenue, Rm. 1120F
Boston, MA 02215
Phone: 617-353-7024
Fax: 617-353-3077