Two Cheers for Freedom of Contract
Posted: 31 Aug 2004
This is a review of a recent collection of essays on contract theory, "The Fall and Rise of Freedom of Contract" (F.H. Buckley ed. 1999). My review evaluates the "revival" of freedom of contract in contemporary law. I show how freedom of contract ideas can make useful contributions in two doctrinal areas, marriage and conflict of laws. Nonetheless, I argue that it is wrong to overstate the extent of the current revival. Freedom of contract never really went into eclipse, even during the realist period, and its current triumph is far from complete. As long as Americans remain committed both to autonomy and public order, our law of contract will be marked by a profound and inescapable tension.
Keywords: Freedom of contract, contract theory, marriage, conflict of laws
JEL Classification: K12
Suggested Citation: Suggested Citation