The Supreme Court’s opinion in National Union for Public Service v. Virginia (1925) states that the court should not “decide cases on a matter to which the parties are not party and on which the parties cannot be agreed between the court and the parties.” And, as Chief Justice Burger explains in In Re National Union for Public Service ,
“We do not believe it behooves the court to give orders which may be of the moment but which in any respect affect the parties to the case, by reason of the difficulty of ascertaining a decision. We consider such orders as premature and premature if they prevent a definite decision from being acquired and an action taken. Neither will we consider a finding that the parties do not agree with the court, a correct finding, if in consequence of the decision the parties agree to a definite decision, as premature.” (Justice Burger is quoting from my book “ The Supreme Court: Its History and the Legacy of Justice Stevens , and a chapter that is still relevant.)
It is no accident that the Supreme Court has been able to strike down common-law contracts on the same basic lines as we’re arguing today.
The common law provides that in a contract, whether written or oral , the parties are equally responsible for its performance.
The common-law principle of contract was never the common-law basis for finding liability against parties to contracts when the latter are not at all aware of or incapable of committing the acts for which they are sued and the contracts are not enforceable against them. [Source] The common-law position was never found to be a reasonable basis for the recovery of damages by a plaintiff when an agreement is void and the defendant cannot be said to have been a party to the contract. Furthermore, although the common-law view that contract law is a “principle, to which one party can turn, and one at which others cannot expect to turn” was held to be unreasonable by the British courts in the case of Oakes et al, supra, the common-law doctrine of contract was never taken to mean a “principle, which one must follow, and one at which one cannot expect to be guided by others” and is “not the basis for the recovery of damages by plaintiffs against defendants in a contract which is void and voidable” (Oakes, supra ).
When they had the luxury of their own interpretation of contractual law, the common-law judges looked to a “principle at which all would turn” - common law precedent. In essence, the common law has allowed judges to rule on actions that involve the parties to a specific contract, regardless of whether they are aware of whether, or their understanding of the terms of the contract will necessarily result in a reasonable result.
This is not surprising in light of the role played by contract law in the development of modern contracts - the evolution of traditional laws of contract and contract law has been driven through and influenced by contract law. If we take as a starting point the common-law standard of liability for breach of contract between private parties, we come up with the following rules: The standard of liability for breach in a personal injury action, when a particular state statute has been breached, is the greater of the amounts recoverable under the negligence, fraud, or fraudulent misrepresentation theories, or $3,000 in lieu of damages, or the limit of $3,000 that may be recovered by a private party. The standard of liability for breach in a tort case, when the party is personally known or can be identified, is not less than $2,500 or the court will award money or services in lieu of damages beyond the amount recoverable under the negligence, fraud, or fraudulent misrepresentation theories. This does not preclude a tort case of a personal injury plaintiff from recovering a higher standard of damages than the negligence, fraud, or fraudulent misrepresentation theories. However, this standard applies only where the party has been identified. If no such party is so identified, the standard of liability based on negligence, fraud, or fraudulent misrepresentation is $6,000. (Source)
The court’s finding that the parties cannot be said to have agreed to a specific decision was a fundamental departure from the common-law approach - the common-law approach was not that people are just the parties to a particular contract. The common-law approach was one of deciding who was to be responsible for the actions that the parties commit. The common-law approach looked for the parties to be responsible for the consequences of their actions under their individual responsibility. It is a mistake, and a dangerous mistake, to say that our individual accountability for an act is determined by the individual. If it was, then if the contract says I will buy this car, then the car would represent my action. When it is in my best interest, I will buy it.
This is what Justice Scalia meant when he remarked that “the common-law view that the parties cannot