The Role of Contract: Stewart Macaulay's Lessons from Practice

Abstract

Stewart Macaulay is one of the most important figures in the American Law and Society movement, and also a central figure in American Contract Law theory. This contribution to a collection honoring Professor Macaulay (based on a conference in his honour). Macaulay’s work reminds us that as Contract Law teachers and theorists we should not lose track of our true subject: the actual practice of transactions and promises among business people and others. The article explores the way that the differences between the picture of contract law given by law teaching and law casebooks and actual contracting practice has the effect of legitimating unjust practices. The article suggests how a greater focus on actual contracting practices (including the way that statutes that purport to protect vulnerable contracting parties tend to be weakened by limiting judicial constructions and other structural biases of the legal system). The article also considers Macaulay’s important distinction between “the real deal” and “the paper deal” – the way that formal contract documents frequently deviate from the parties’ own understanding of their agreement – and whether the problem this raises could be fixed by a more contextual (less formalistic) approach to judicial decision-making.

Keywords: Stewart Macaulay, Law & Society, Contract Law, contextual decision-making