Plural Values in Contract Law: Theory and Implementation

20(2) Theoretical Inquiries in Law (June 2019)

Yale Law & Economics Research Paper Forthcoming

22 Pages Posted: 29 Jan 2019

Multiple version iconThere are 2 versions of this paper

Date Written: December 26, 2018

Abstract

Private law theory must confront the plurality of values that inform the problems that private law addresses in practice. We consider Hanoch Dagan’s and Michael Heller’s The Choice Theory of Contracts as a case-study in the promise and perils that embracing plural values poses for private law theory.

We begin by arguing that private law theory cannot ignore value pluralism and identify three approaches that theory might take to pluralism. We call these approaches capitulating to, leveraging, and embracing value pluralism. We illustrate each approach and assess its strengths and weaknesses.

Theories that capitulate to pluralism simultaneously limit their scope and hamper their persuasiveness even within their restricted domains. Theories that leverage pluralism limit their domains more dramatically still. And theories that embrace pluralism are difficult to operate in practice without abandoning their pluralist roots.

We briefly illustrate the drawbacks of capitulating to and leveraging pluralism with examples from recent contract theory. We then take up theories that embrace pluralism in greater detail, by studying Dagan’s and Heller’s approach. We argue that Dagan and Heller do not solve the deep problems that operationalizing their embrace of pluralism inevitably engenders.

Suggested Citation

Markovits, Daniel and Schwartz, Alan, Plural Values in Contract Law: Theory and Implementation (December 26, 2018). 20(2) Theoretical Inquiries in Law (June 2019); Yale Law & Economics Research Paper Forthcoming. Available at SSRN: https://ssrn.com/abstract=3317649

Daniel Markovits

Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

Alan Schwartz (Contact Author)

Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-4030 (Phone)
203-432-8260 (Fax)

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