Tuesday, July 19, 2005
In a recent article, Daniel Markovits (Yale) tackled one of the Big Issues: a general theory of contract. Now Ethan Leib (UC-Hastings) (left) takes a respectful but critical look at Markovits's thesis in Collaboration, Organizations, and Conciliation in the General Theory of Contract, forthcoming in the Quinnipiac Law Review. Here's the abstract:
This short piece exposes a central shortcoming of all general theories of contract that purport to be comprehensive and descriptive: they tend to exclude whole types of contracts to make their theories fit. As the essay explains, there are contracts between individuals (Type (1)), between organizations (Type (3)), and between individuals and organizations (Type (2)). By carefully analyzing Daniel Markovits’s recent attempt at a contract theory in his Contract and Collaboration, 113 Yale L.J. 1417 (2004), as well as looking at Schwartz and Scott’s recent effort in Contract Theory and the Limits of Contract Law, 113 Yale L.J. 541 (2003), I am able to expose how contract theorists ignore various Types of contracts to their theories’ detriment. At the conclusion, I suggest how Types of contracts are relevant to contract theory construction -- and how a focus on Types can point to a resolution of some of the ongoing debates in contract theory.