The past three decades have seen an enormous amount of writing by Anglo-American scholars about contract theory. If nothing else, this demonstrates the almost universal perception that there are serious problems with the received theory of contract, the product of giants like Holmes, Williston, Cardozo and Corbin. This theoretical activity, instead of creating a new paradigm, has produced divergent theoretical approaches with various bands of scholars striking off in quite different directions, and in the process leaving most judges and lawyers back at the starting point. What should we be trying to do when we build a contract theory for the law and for lawyers? This article walks through the variations of mechanical theory, positional theory, social theory, and balance theory highlighting the advantages and disadvantages of each in search of the most useful contract theory for practical application.
Joel Levin and Banks McDowell,
Striking the Balance in Contract History,
40 Clev. St. L. Rev.
available at http://engagedscholarship.csuohio.edu/clevstlrev/vol40/iss1/4