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Does Contract Law Need Morality?

9 William & Mary Business Law Review (2018 Forthcoming)

16 Pages Posted: 15 Nov 2017  

Kimberly D. Krawiec

Duke University School of Law

Wenhao Liu

Stanford University - Management Science & Engineering

Date Written: November 12, 2017

Abstract

In "The Dignity of Commerce", Nathan Oman sets out an ambitious market theory of contract, which he argues is a superior normative foundation for contract law than either the moralist or economic justifications that currently dominate contract theory. In doing so, he sets out a robust defense of commerce and the marketplace as contributing to human flourishing that is a refreshing and welcome contribution in an era of market alarmism. But the market theory ultimately falls short as either a normative or prescriptive theory of contract. The extent to which law, public policy, and theory should account for values other than economic efficiency is a longstanding debate. Whatever the merits of that debate, we conclude that contract law does not need morality as envisioned by Oman — a fluid, subjective, and seemingly instinctual approach to the morality of markets.

Keywords: Contracts, morality, efficiency, economics, commerce, markets

JEL Classification: K12, K00, K1

Suggested Citation

Krawiec, Kimberly D. and Liu, Wenhao, Does Contract Law Need Morality? (November 12, 2017). 9 William & Mary Business Law Review (2018 Forthcoming). Available at SSRN: https://ssrn.com/abstract=3069935

Kimberly Krawiec (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

Wenhao Liu

Stanford University - Management Science & Engineering ( email )

473 Via Ortega
Stanford, CA 94305-9025
United States

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