Unintelligent Design in Contract

Scholars have expended considerable energy in the effort to discover a normative theory of Contract. This Article surveys that effort and concludes that something fundamental about Contract has been missed and has frustrated the search from the outset. Succinctly, Contract doctrine resists the neat formulation theory requires. Theorists\u27 perspectives on Contract may be generalized as attempts to impute either deontology or consequentialism to the Contract law. Focusing largely on deontological constructions of Contract, this Article demonstrates the inconsistencies among the extant heuristics-promise, reliance, and transfer-and more importantly, the failure of any of those constructions to provide a coherent explanation of Contract doctrine. This failure reveals a more fundamental failure of Contract theory generally: Because doctrine is a matter of historical accident rather than divine inspiration, efforts to explain doctrine as an outgrowth of some coherent and fundamental purpose are necessarily unavailing, and ultimately obfuscatory. Contract defies reduction into certain normative terms because Contract doctrine is an amalgam of normative inclinations. Neither pure deontology nor pure consequentialism is the source of all Contract; both rather serve as poles at the ends of a Contract continuum. This Article concludes that the search for the grail-the theory of Contract-heretofore has been misdirected. Our effort to understand Contract in normative terms should begin anew, from the premises offered here

On Discovering Doctrine: Justice in Contract Agreement

I pursue here what might be termed “doctrinal jurisprudence”: Study of the way facts (including rules) become legal doctrine, specifically here how idiosyncratic perceptions concerning “justice” facts support the development of contract agreement doctrine. This Article investigates the relationship between the way we encounter data (including laws, and specifically a contract law) and what we may conclude about the Law, as doctrine, that emerges from that encounter