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The Big Picture of Contracts

Dave Hoffman

Dave Hoffman is the Murray Shusterman Professor of Transactional and Business Law at Temple Law School. He specializes in law and psychology, contracts, and quantitative analysis of civil procedure. He currently teaches contracts, civil procedure, corporations, and law and economics.

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8 Responses

  1. Jeff Lipshaw says:

    Dave, as I mentioned to you offline, the paper itself isn’t ready for primetime, but I’ve been mud wrestling with structure by writing the introduction over the last several weeks (it’s a reworking of something I posted on The Faculty Lounge a couple months ago). But I did just submit a paper proposal to Law & Society (still not sure if I’m going) with the following title and abstract:

    MEANING, MODELS, AND METAPHORS IN CONTRACT LAW

    Why is there such a wide gap between the subject matter of the usual first contract year law course and what practicing lawyers actually experience? Apart from the “law-in-action” approach that has evolved from Stewart Macaulay’s ground-breaking work, most academic presentations focus on the antinomial debate between formalism and contextualism, and do so almost exclusively in an “after-the-fact” frame. Even “law-in-action”, however, is antinomial to formalism in its own way, understating how thoroughly the drive for conceptual coherence permeates the process by which we make our way through a confusing and complex world. I suggest that a more fruitful way of thinking about contract law, both theoretically and practically, is to focus on a “subjective to objective” progression, and to consider the differing perspectives of those – negotiators, drafters, litigants, judges, and scholars – who either participate in or observe the process of making and documenting bargains. It is a perspectival “models and metaphors” approach. That is to say, it is impossible to understand the contract-making and contract-litigating process without understanding the perspective of the particular participant or observer, and without understanding the models and metaphors that constitute the conceptual frames from within which those participants and observers perceive and make use of the rules.

    Anybody interested in commenting on the w-i-p should drop me a note.

  2. Ken Rhodes says:

    Dave, your student had an interesting, if unatainable, objective, and your couple of sentences of comment are interesting too.

    But your student made an fatal googling error that caused his non-return of what he was looking for. He should have googled “contracts” + “big picture.” He would have gotten a huge number of returns, and quite a few near the top of the list would have given him some relevant reading.

  3. Ken Rhodes says:

    http://volokh.com/2010/08/27/oxford-introduction-to-u-s-law-contracts/

    After my previous post, I was interested to see what’s available on the topic, so I went back and looked closer at the returns I got from Google. Near the top of the list I found this post on The Volkh Conspiracy that’s absolutely on point.

    There’s a book, written by Professor Randy Barnett, that purports to do pretty much exactly what your student was looking for. It’s intriguing enough to me to warrant spending twenty bucks on the paperback.

  4. Dave Hoffman says:

    There are many (many, many) books purporting to provide in one place a unifying theory of contracts. I tend to think that such books can be useful in that they illuminate the author’s various (and sometimes perceptive) theories about the opinions selected. But I doubt their value at the purpose to be served: providing a truly unified theory of the course.

  5. Lawrence Cunningham says:

    Interesting point in the post on an unanswerable question (hinting at its value). I look forward to Jeff’s paper, though wonder how the objective/subjective distinction isn’t just a sub-set of the formalism/contextualism duality.

    Akin to Dave’s thesis, I doubt any such tidy thrusts or parries work, including Randy Barnett’s singularity thesis that he advertises in the link Ken makes. I’m with Corbin, seeing contracts as combining all the long-known oppositions, and with Llewellyn, that law is as large as life (and especially contract law).

    A different answer to Dave’s student’s question is something like the private law of promissory exchange, in its frustrating, yet exhilarating, life-like infinite complexity. If you want someone else’s big picture, read a nutshell or Barnett’s book; if you want the really big picutre, keep reading all the small cases and meditations.

  6. Nate Oman says:

    Dave: I have never argued that there is a single big picture to contracts. Indeed, in every article on contract theory that I have written I have reaffirmed my belief that any theoretical approach to contract law is necessarily pluralistic. I do think, however, that there is a problem with the rout that you and Larry suggest, namely a piling up of particulars and an ad hoc and localized knowledge of this or that case or issue.

    The first problem is that rule of law values dictate that like cases be treated alike. Now one can go down the CLS rat hole and give up on this as a pipe dream, but a fair amount of the legitimacy of our legal system and its practical value to market participants rests on this basic ambition. Accordingly, I see no way of advancing these values other than trying to figure out what makes two cases alike or different. That will require an attempt to unify different particulars so as to show what they have in common. This doesn’t mean that we can reduce contract law to a single neat system of rules deduced from a clean set of master values, but it does mean that we have to continually engage in the project of unification in order to advance these values.

    Second, in order for our law to be legitimate it must have some sort of a justification, even if we all conceded that the law is far from perfectly coherent and that the law we have is not the law that would be for the best in the best of all possible worlds. The justification of the law, however, is going to require against an attempt to show that the law is something more than the mindless parade of localized particulars. We will need to be able to identify the law’s basic structure and then link that structure up to some plausible normative story.

    Third, if we are going to change or reform our law, we must have some understanding of what sorts of values it currently advances. Again, I am not suggesting that the law is completely unified or coherent. But such a belief strikes me as a less dangerous belief than a kind of cheap realism that denies that the law can be rendered coherent or justified. I worry about jettisoning valuable social practices that we think are pointless or incoherent because we have been too lazy to think about what their point might be or how they might be rendered coherent.

    In the end, I am actually a fan of recurrence to particulars and I think that the common law has been well served by creating law out of the accretion of particulars rather than the deduction from first principles. I do think, however, that there are important values to be served by the struggle to understand and interpret the law as coherent and justified a practice as we can make it. It is only at this point that we will be able to evaluate it responsibly. I agree with Cardozo that, “It is a misleading cult that teaches that the remedy of our ills is to have the law give over, once and for all, the strivings of the centuries for a rational coherence, and sink back in utter weariness to a justice that is the flickering reflection of the impulse of the moment.”

  7. A.J. Sutter says:

    To Lawrence, who is wondering: speaking subjectively as a practitioner, we are more likely to think in phrases like “objective/subjective distinction” than in opaque jawbreakers like “formalism/contextualism duality”.

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