Jean Braucher, John Kidwell and William C Whitford (eds.)
Revisiting the Contracts Scholarship of Stewart Macaulay
On the Empirical and the Lyrical
Oxford, Hart Publishing (International Studies in the Théory of Private Law, n°10), January 2013, 466 p., ISBN:9781849463010, 60£.
This book contains the papers prepared for a conference held at the Wisconsin Law School in 2011 to honour the work of Stewart Macaulay, one of the most famous contracts scholars of his generation. Macaulay has been writing about contracts and contract law for over 50 years; the 1960s were particularly productive years for him, when he introduced many novel ideas into the scholarly world. Macaulay's foundational work for what is now called relational contract theory was published during this period. Macaulay is also known for his use of empirical research and interdisciplinary theories to illuminate our knowledge of contracting practices.
The papers in this volume reflect, in diverse ways, on the subsequent influence and the contemporary relevance of Macaulay's work. All the contributors are important contracts scholars in their own right: David Campbell and John Wightman from the UK, Brian Bix, Jay Feinman, Robert Gordon, Claire Hill, Charles Knapp, Ethan Leib, Deborah Post, Edward Rubin, Carol Sanger, Robert Scott, Gordon Smith, Josh Whitford (with Li-Wen Lin) and William Woodward from the USA. The volume also reproduces Macaulay's most cited paper, 'Non-Contractual Relations in Business', and excerpts from two other important papers of his, 'Private Legislation and the Duty to Read-Business Run by IBM Machine, the Law of Contracts and Credit Cards', and 'The Real and The Paper Deal: Empirical Pictures of Relationships, Complexity and the Urge for Transparent Simple Rules'.
- Jean Braucher is Roger C Henderson Professor of Law at the University of Arizona.
- John Kidwell was, until his death in 2012, Emeritus Professor of Law at the University of Wisconsin-Madison.
- William C Whitford is Emeritus Professor of Law at the University of Wisconsin-Madison.
Table of Contents
List of Contributors xvii
Bibliography of Publications by Stewart Macaulay xix
‘Non-Contractual Relations in Business – A Preliminary Study’
(1963) 28 Am Soc Rev 1 1
Excerpts from ‘Private Legislation and the Duty To Read – Business Run by IBM Machine, the Law of Contracts and Credit Cards’ (1966) 19 Vanderbilt L Rev 1051 20
Excerpts from ‘The Real Deal and the Paper Deal’: Empirical Pictures of Relationships, Complexity and the Urge for Transparent Simple Rules’ (2003) 66 Modern L Rev 44 35
Part I. Relational Contracts and Theory
1. Is the World of Contracting Relations One of Spontaneous Order or Pervasive State Action? Stewart Macaulay Scrambles the Public–Private Distinction 49
Robert W Gordon
2. Empiricism’s Crucial Question and the Transformation of the Legal System 74
3. The Promise and the Peril of Relational Contract Theory 105
Robert E Scott
4. Ambition and Humility in Contract Law 140
Jay M Feinman
Part II. Contractual Relations Between Businesses: Law and Behaviour
5. What Do We Mean By the Non-Use of Contract? 159
6. Conflict and Collaboration in Business Organisation: A Preliminary Study 191
Li-Wen Lin and Josh Whitford
7. What Mistakes Do Lawyers Make in Complex Business Contracts, And What Can and Should be Done About Them? Some Preliminary Thoughts. 223
Claire A Hill
8. The Role of Contract: Stewart Macaulay’s Lessons from Practice 241
Brian H Bix
Part III. Contractual Relations with Individuals: Law and Behaviour
9. What is the Relational Theory of Consumer Form Contract? 259
Ethan J Leib
10. Acquiring Children Contractually: Relational Contracts at Work at Home 289
11. Is There a ‘Duty to Read’? 315
Charles L Knapp
Part IV. Relational Critiques of Contract Doctrine
12. Restitution Without Context: An Examination of the Losing Contract Problem in the Restatement (Third) of Restitution 347
William J Woodward Jr
13. Contract in a Pre-Realist World: Professor Macaulay, Lord Hoffmann and the Rise of Context in the English Law of Contract 377
14. The Deregulatory Effects of Seventh Circuit Jurisprudence 402
Deborah Waire Post
15. Doctrines of Last Resort 426
D Gordon Smith
xvi Table of Contents