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Custom, Adjudication, and Petrushevsky’s Watch: Some Notes from the Intellectual Property Front, 78 Virginia Law Review 129 (1992)


The Russian absurdist writer Daniil Kharms told the following story about Pushkin:

Once Petrushevsky broke his watch and sent for Pushkin. Pushkin came, looked at Petrushevsky's watch, and put it back on the chair. "What do you say, Brother Pushkin?" Petrushevsky asked. "The wheels stopped going round," Pushkin said.

I sometimes share this story with my students in Contracts when we talk about the ability of courts to stand outside of an industry and to figure out what the custom of dealing is in order to imply terms in a contract. The courts, I explain, might be able to tell whether the wheels are turning, but I am not sure that they can tell why or why not.

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