Hanoch Dagan (University of California, Berkeley – School of Law) and Seth Davis (University of California, Berkeley School of Law) have posted Interpreting Intergovernmental Contracts (Liberally) on SSRN. Here is the abstract:
Intergovernmental contracts are vital to public governance and administration in the United States. Yet contract law theorists have largely ignored intergovernmental contracts, and constitutional and administrative law scholars have only begun to incorporate them into theories of the separation of powers and federalism. Judges, by contrast, cannot ignore intergovernmental contracts, even as they struggle to decide fundamental questions about how to interpret them. In recent years, the U.S. Supreme Court has said that contract law controls the interpretation of various types of intergovernmental contracts. In this Article, we take seriously the possibility that contract law and theory provide guidance to the interpretation of intergovernmental contracts. We offer a taxonomy of the types of intergovernmental contracts and a methodology for interpreting them that draws on liberal contract theory, which insists that the value of autonomy informs contract law’s doctrines and rules, including its rules of interpretation. Interpreting intergovernmental contracts liberally yields overarching maxims and a set of critical guidelines for principled judicial interpretation of these important contracts. While our methodology is not designed to resolve all the complications, including those that arise from the constitutional law of separation of powers and federalism, we do show that if the private law of contracts is to be taken seriously, as the Court has said it should be, then existing jurisprudence needs reform.
Highly Recommended!
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