Sorry to add yet another question about Berstein, but Professor Lessig started addressing this at the end of class and I was intrigued / confused.

How do the "objective" vs. "subjective" labels map onto the Berstein decisions? In stretching to make the contract enforceable in the first instance, many of us as "reasonable" observers felt that the phrase in question might be interpreted as creating a lack of mutuality. Thus the court seem's to be employing a subjective view of the parties' intent.

Yet in the second instance, some of us seemed to believe that Ct. was overlooking intent in that it seemed both parties would assume that "determination" applied to credit only. Thust he Ct. seems to be employing an objective viewpoint, paying little or no heed to the intent of the parties.

Is the court's position contradictory? Or am I getting confused in the use of the subjective / objective constructs? Any feedback is greatly appreciated.

-- Anonymous, September 28, 1998

Answers

It looks to me like the court is using an objective reading in both cases. The court talks about the law and the parties' arguments, but then makes no appeal to evidence, common understandings, or the understandings of the parties. Good ole J. Pierce just says: "We interpret 'sometimes' in the clause to mean..." and then a year later: "Giving to the clause a fair construction, we think....". Seems like J. Pierce is just making it up as he goes along. After all, the second case is a carbon copy of the first, and J. Pierce even directly quotes the previous year's discussion. I can't come up with any good reason for either decision, as I personally read the contract and get the exact opposite conclusion that J. Pierce gets.

-- Anonymous, September 28, 1998

I was thinking about this in class today, and I thought maybe Prof. Lessig's argument about the reasoning behind the case uniting two otherwise ostensibly different positions could be an argument for the courts' employing an intersubjective viewpoint. For instance, the whole buyer's credit rights thing that the 2nd Bernstein decision supposedly invoked was really, as I understand it, just the invocation of a commonly accepted principle about fairness to buyers. In the 1st Bernstein case as well, the court was drawing on a common principle that agreements should be upheld if at all possible.

If both courts, then, were acting from an intersubjective viewpoint,it would seem to support Prof. Lessig's contention that there is some kind of unity of court purpose in these two decisions. Otherwise, I agree with Nathan in that it looks like one court is employing the subjective viewpoint while the other is employing the objective viewpoint. Or maybe two different objective tests?

Anyway, any feedback on pulling in intersubjectivity would be great. I feel like I might just be making this all up. I was pretty confused by these distinctions today as well.

-- Anonymous, September 29, 1998

I think I would agree with Christian that the Court is using the objective method of interpretation. If Prof. Lessig's explanation of the reasoning behind the two cases actually coincides with the Court's, then the objective rule the Court adopted in Bernstein would seem to be something like, "In case of _any_ ambiguity, assume the sentence does not violate principles in commerce which the Court thinks is important. In case of conflicting principles, assume non-violation of the one the Court thinks is more important."

I think Elizabeth's point is also really interesting and valid though. But I guess I thought that whether the Court's interpretation is inter-subjective would depend not only on whether the principles that influenced the Court's reading were widely accepted by the commercial community, but also on whether the community would assume those principles to apply even if a contract seems to have specifically invalidated them. It might also depend on the intent of the judges--whether what the commercial community believed actually influenced their decision. (Is that true?)

Tawen

-- Anonymous, September 30, 1998