Pre-closing Liability

Writing about Judge Easterbrook’s impact on contract law without commenting on his decisions in ProCD v Zeidenberg and Hill v Gateway 2000 is like ordering a Big Mac without the two hamburger patties. Where is the beef? These two cases are probably the most important and influential contract law decisions of our era. They reshaped the doctrine of mutual assent and received a tsunami of scholarly attention. Four major legislative efforts on the national scale—so far unsuccessful—were triggered by the desire to reverse the holdings in these decisions, and in the judicial following they garnered. Despite the temptation, I choose not to remark on these branches of Easterbrook’s jurisprudence. They have been dissected in a host of articles, court decisions, and symposia. Contracts doctrinalists largely hate these decisions—it has become almost an instinct among contracts commentators to collectively condemn these decisions— whereas some law and economics writers support the decisions. Elsewhere, I argue that ProCD and Hill should be viewed as two of the most consumer-friendly cases of our era, since they introduce a novel right to withdraw from a contract. Here, instead, I am electing to turn my attention to another of Easterbrook’s resounding contributions: the problem of precontractual liability.