Document Type

Article

Publication Date

2006

Abstract

It is a universally acknowledged truth that we live in a formalist era—at least when it comes to American contract law. Much more than the jurisprudence of a generation ago, today's cutting-edge work in American contract scholarship values the formalist virtues of bright-line rules, objective interpretation, and party autonomy. Policing bargains for substantive fairness seems more and more an outdated notion. Courts, it is thought, should refrain from interfering with market exchanges. Private arbitration has displaced courts in the context of many traditional contract disputes. Even adhesion contracts find their defenders, much to the chagrin of communitarian scholars.

This is not the first formalist era in American contract law. For about 60 years after 1870, the American academy was dominated by what has come to be known as classical jurisprudence. The classicists were formalists, too. They argued in favor of objectivity and predictability and relatively free markets. Indeed, the story of their overthrow by the Progressives and Realists in the middle part of the twentieth century, a story told memorably by Grant Gilmore in The Death of Contract and The Ages of American Law, is in many ways the grand narrative of American contract jurisprudence. It would be entirely understandable for contemporary formalists to view themselves as a kind of Restoration.

Yet New Formalists—the designation became popular in the 1990s—don’t really see things that way. New Formalists reject classical contract jurisprudence as outmoded. They dismiss the essentialism of the classicists, preferring arguments about efficiency and pragmatism to conceptual analysis. They reject the classical belief in the ineluctability of legal rules; for New Formalists, legal rules have only presumptive force. Their commitment to the free market is less conceptual. Finally, New Formalists denigrate the under-theorized nature of classical jurisprudence. New Formalist scholarship does not focus on doctrine and does not rely on the intuitive justifications of lawyers and judges. Rather, it seeks to explain contract law with the tools of social science: economics and statistics.

In reality, the differences between classical and contemporary formalism are less pronounced than New Formalists believe. Some versions of classical jurisprudence might fit the image New Formalists have of it; the work of Langdell, perhaps, comes close to the caricature. But some classical jurisprudence does not. Using the work of an important classical contract scholar, Samuel Williston, I will show that at least one influential version of classical formalism also valued pragmatism. Williston was not an essentialist. He held that legal rules were presumptive, to be disregarded where important real-world values counseled a different result. Moreover, Williston did not support freedom of contract with the ideological fervor we sometimes attribute to him.

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