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

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, however, there are several barriers making dialogue among legal scholars difficult. In particular, the conversation about social justice--by now an important element of private-law reform within the European Union--is less prominent in American contract law scholarship. In U.S. legal academia, social justice is a matter for moral philosophers, development economists, and constitutionalists, and also provides normative frameworks for current property and torts debates, but its impact on contracts scholarship has declined over the past few years, and efficiency discourse has often replaced social justice parlance. 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 post-national rules for private autonomy, Europe may draw better lessons from U.S. regulatory experiences if it first deconstructs 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. [ABSTRACT FROM AUTHOR]