Common Sense, Contracts, and Law and Literature: Why Lawyers Should Read Henry James

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Touro Law Review


There are at least two ways that Law and Literature methodologies can provide insight into the vexed space that is common sense: (1) Common Sense as the Failure of Imagination, and (2) Common Sense and the Problem of Ambiguity. Generally, failure of imagination occurs in connection with contract formation issues, and ambiguity with contract interpretation issues. To help elaborate these issues in the contractual universe of Gateway 2000 "pay now, terms later" contracts, I will first draw on the etymology of the phrase "common sense" to discuss the failure of imagination in the contract formation issues in that case and second, I will utilize Henry James' The Turn of the Screw to discuss ambiguity and contract interpretation issues. 7

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Publication Date

Summer 2000