I have the privilege of replying to two responses to my article, Reasonable Expectations in Socio-Cultural Context. The first response is by Professor David Epstein, who writes in a footnote that he hopes I prepare a “devastating rejoinder showing how [he] misunderstood [my] article.” I don’t know how devastating my rejoinder is—and to devastate is not my objective—but I do think he misunderstands my article. He certainly misread my analysis of In Re Marriage of Witten. He misconstrues a rhetorical question (asked and answered in the negative) as an affirmative statement that an implied contract to have biological children existed between the parties, Tamera and Trip: “And, assume, as the Article suggests, that had there been any cultural dissonance between the judge and [Tamera], the court would have recognized ‘an implied contract between Tamera and Trip whereby each promised to do their part to have biological children.’”

One might have expected that the Supreme Court’s recent decision in the violent video game case, Brown v. Entertainment Merchants Ass’n, would have been a thoughtful balancing of society’s competing interests in protecting freedom of speech and protecting children from harm. After all, the Supreme Court held decades earlier that the government could deny minors access to soft-porn, or what the Court called “girlie magazines.” So one could have assumed the Court would seriously consider California’s claim that minors also needed sheltering from the grittier world of violent video game rapes, beheadings, and ethnic cleansings.

Back in the 1980s, a young man and his girlfriend were driving in Alexandria, Virginia, and stopped at a federal enclave along the Potomac River for a stroll. In compliance with Virginia law, the man carried a revolver in plain sight in the truck. A Federal Park Police Officer came by, noticed the revolver, and left the immediate area to call backup. The couple returned to the truck and drove away at a normal speed, leaving the federal property. The officer pursued the truck, turned on his flashing lights, and stopped the couple. Suddenly, two Fairfax County police cars arrived. The man and woman were pulled from the truck, thrown down on their stomachs, and handcuffed behind their backs. Officers pointed pistols and shotguns at their heads. The man was charged with possession of a firearm on park property.

Professor Fallone identifies two competing theories of the Constitution—that it is a “charter of delegated power” and “a compact.” As he presents it, the charter (or delegation) view holds that “the Constitution grants no absolute sovereign powers to the federal government; those powers continue to be retained by ‘the people.’” Therefore, the only legitimate authority that the federal government possesses is the authority to exercise the powers expressly delegated to it in the Constitution’s text.”

In her article, Reasonable Expectations in Sociocultural Context, Professor Nancy Kim tackles the problems created by an objective theory of contract in a pluralistic society and a global economy. She is a proponent of an “expanded intent analysis,” which she says would require courts to consider facts “in cultural context.” Her test for contractual intent, which she has named “contextual purposive intent,” would include the social identities of the parties to the contract. I have chosen to focus on her analysis of Kim v. Son, an unpublished California appellate court decision in which the plaintiff’s claim was denied for lack of consideration, and her argument that a contextual purposive intent analysis would have changed the outcome and produced a more just result in that case.

I have been asked to write a short response to Professor Heidt’s article, Damned for Their Judgment: The Tort Liability of Standards Development Organizations, which appeared recently in the Wake Forest Law Review. In this article, Professor Heidt criticizes several decisions upholding damage awards to injured consumers against the National Spa and Pool Institute (“NSPI”). Professor Heidt argues that these cases are wrongly decided on both doctrinal and policy grounds. My response would probably be more interesting if I completely disagreed with Professor Heidt. But, after reading his excellent article, I am persuaded that Professor Heidt’s position is essentially correct.