The contemporary law merchant


In an attempt to end the long and unjustified reign of what Kaden’s calls “the tyranny of a con-struct”, Professor Bernstein continues her investigation by acknowledging that there have been many changes in the infra structure of commerce over the past hundred years, which makes it worthwhile to explore whether unwritten usages exist in more contemporary merchant com-munities. In particular, in this session, the investigation follows by looking at the available con-temporary evidence about the existence of usages, and then briefly explore the normative question, of whether if they exist, they should be used by courts to resolve contract disputes.


Lisa Bernstein, Merchant Law for a Modern Economy, in PHILOSOPHICAL FOUNDATIONS OF CONTRACT LAW, Gregory Klass, George Letsas & Prince Saprai eds. (Oxford University Press, 2014)

Lisa Bernstein, Custom in the Courts, 110 Nw. U. L. Rev. 63 (2015).

Lisa Bernstein, Contract Governance in a Small World Network: The Case of the Maghribi Traders, 113 Northwestern Law Review __ (2019)

Jody S. Kraus & Steven D. Walt, In Defense of the Incorporation Strategy, in THE JURISPRUDENTIAL FOUNDATIONS OF CORPORATE AND COMMERCIAL LAW 193 (Jody S. Kraus & Steven D. Walt eds., 2000).

Stewart Macaulay, Relational Contracts Floating on a Sea of Custom -- Thoughts about the Ideas of Ian MacNeil and Lisa Bernstein, 94 Nw. U. L. Rev. 775 (1999-2000).

Jonathan Morgan, Contract Law Minimalism: a Formalist Restatement of Commercial Contract Law (Cambridge Press 2013)

Alan Schwartz & Robert E. Scott, Contract Theory and the Limits of Contract Law, 113 Yale L.J. 541 (2003)