Theory of Contract or Theory in Contract?

Posted by Jeff Lipshaw

Two of my favorite bloggers, Gordon Smith and Nate Oman, each have something posted on contracts casebooks, though I realize now that Nate’s was on the AALS Contracts listserv and for my purposes has disappeared into the ether.  I stand to be corrected, but I believe Nate was endorsing the Jody Kraus and Robert Scott book for its incorporation of both law & economics and deontological approaches to contract theory.  Gordon was lauding the Macauley Wisconsin materials for their de-emphasis of the usual endless doctrine on offer and acceptance.

As to Nate’s comment (which I cannot find, much less link, thanks to my new IMAP versus POP mail server, so this is a little unfair) I would love to offer a seminar some day on advanced contract theory, something like the one Avery Katz offers at Columbia, to self-selecting students who actually care about this stuff.  The closest I’m able to bring myself to theory in first year contracts is the tension between notions of contract law as traditional deductive or inductive self-contained doctrinal system versus the kind of result-orientation of critical or realist thinking.  That, it seems to me, is at least a theoretical issue with which any contract litigator (or any litigator period) has to grapple.  But all of my short forays into deeper theory have met with something between stone silence, uncomfortable squirming in seats, or the inevitable “will this be on the exam?”  One of my new colleagues at Suffolk said something to me I thought was perceptive as we were discussing some of my wilder jaunts into the intellectual Van Allen belts:  “it’s good you have those outlets in your writing so that you don’t have to foist it on your students.”

As to Gordon’s comment, I agree, but I’m not sure what in contract law really does make a difference.  Consideration is really the doctrinal entry point for a discussion of the theoretical question about the distinction between promises and contracts.  Who in practice ever debates this?  Statute of frauds and parol evidence have some impact, I guess, although I only recall one instance of facing an S/F issue in practice (that real estate brokerage agreements in Michigan have to be in writing – this in response to a broker who was trying to squeeze us for a commission he claimed had been verbally promised to him), and parol evidence really is an evidence issue.  Here’s a bold assertion:  98% of contract work – ex post and ex ante – is interpretation, and it constitutes about one twenty-eighth of the normal first year contracts curriculum.  On the other hand, I can’t help but think that mind-numbing inculcation in lawyer-like anality is a good thing, because it transfers to the interpretation exercise, which is at the core of everything.