Re:My unusual hobby
by wildmusings on Saturday November 25, 2017 @09:19PM
(#15779125)
>Very few things in law are truly reducible to some hard, bright-line rule.
My language is a little sloppy here. There are plenty of legal rules that lawyers would call bright-line rules. But they'll usually still fall short of something that can evaluated in software, as a programmer might expect of a rule so-described.
Say you own an apartment building with a view of the ocean and I own the plot directly between it and the ocean. I threaten to build a wall that blocks your building's view of the ocean unless you buy my plot for 10x more than its market worth. Should that be legal? Say you succumb to my demand. Should you be able to then sue me and recover the excessive payment? I think many would have the intuition that my threat should not be legal and any resulting contract not valid, since it was extracted by duress.
But how about Firefox selling its search bar to Google for billions of dollars, carrying the implicit threat to use a different default provider should Google not pay. That seems more fair than the previous example, but why?
And how do you formulate that difference into a hard rule, without relying on human beings' (i.e. judge and jury) intuitions of fairness and equity?
Here is what the Restatement of Contracts has to say:
Look at all of the subjective terminology: "bad faith", "good faith", "fair dealing", "fair terms", "significantly".And look at (2)(c), "otherwise a use of power for illegitimate ends". What does that even mean? It's basically a surrender, acknowledging that it is impossible to formulate a rule ex ante that totally captures our notions of fairness as they should be applied in every possible situation.