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Texas Weslyan Law Review


It is remarkable that the common law remains as vibrant and as vulnerable today as it was in the nineteenth century. Its vibrancy continues to be illuminated by its responsiveness to societal changes; its vulnerability continues to reflect the flip-side of that responsiveness: an inherent indeterminacy. The analysis that follows investigates the feasibility of maintaining the former characteristic while curtailing the latter, and it is limited to the common law in its interpretive capacity. The principal focus of the analysis is, in keeping with the theme of the conference, the common law of contracts. From that perspective, the Article articulates the problem of indeterminacy in contract cases and proposes a resolution. The crux of my argument is that indeterminacy undermines the legitimacy of the common law to the extent that interpretation in a particular case seems arbitrary or worse-biased and partisan. The antidote might be an interpretive rule regime that compels transparency in judicial decisionmaking. The obvious venue for the project is the Restatement. Because, contract law is primarily interpretive, a re-articulation of the Restatement (Second) of Contracts, which captures and makes explicit the predominance of interpretation in contract law and the availability of alternative interpretive rules at each step of judicial decisionmaking in contracts cases, would encourage judges to make their interpretive choices explicit and their reasoning more apparent. This, in turn, would constrain indeterminacy by holding judges responsible for persuading us that their choice of interpretive rules in a particular context was neither arbitrary, nor biased, nor partisan, but a legitimate choice among competing alternatives.