Choice Theory: A Restatement

chapter in RESEARCH HANDBOOK ON PRIVATE LAW THEORIES (Hanoch Dagan & Benjamin Zipursky eds., Elgar Publishing, Forthcoming)

Columbia Public Law Research Paper No. 14-637

Columbia Law and Economics Working Paper No. 616

33 Pages Posted: 8 Aug 2019 Last revised: 4 Feb 2020

See all articles by Hanoch Dagan

Hanoch Dagan

Tel Aviv University - Buchmann Faculty of Law

Michael Heller

Columbia University - Columbia Law School

Date Written: August 4, 2019

Abstract

This chapter restates choice theory, which advances a liberal approach to contract law. First, we refine the concept of autonomy for contract. Then we address range, limit, and floor, three principles that together justify contract law in a liberal society. The first concerns the state’s obligation to be proactive in facilitating the availability of a multiplicity of contract types. The second refers to the respect contract law owes to the autonomy of a party’s future self, that is, to the ability to re-write the story of one’s life. The final principle concerns relational justice, the baseline for any legitimate use of the contract power. We conclude this restatement of choice theory by highlighting its most important jurisprudential payoff – how our account relates to and improves on the economic analysis of contract. Choice theory is the modest price that economic analysis must pay to account for individual freedom.

Keywords: contract, contract law, contract theory, private law theory, legal theory, jurisprudence, philosophy of law

JEL Classification: K12, K39, D86

Suggested Citation

Dagan, Hanoch and Heller, Michael, Choice Theory: A Restatement (August 4, 2019). chapter in RESEARCH HANDBOOK ON PRIVATE LAW THEORIES (Hanoch Dagan & Benjamin Zipursky eds., Elgar Publishing, Forthcoming); Columbia Public Law Research Paper No. 14-637; Columbia Law and Economics Working Paper No. 616. Available at SSRN: https://ssrn.com/abstract=3432743

Hanoch Dagan

Tel Aviv University - Buchmann Faculty of Law ( email )

Ramat Aviv
Tel Aviv 69978, IL
Israel
+972 3 640 7302 (Phone)

Michael Heller (Contact Author)

Columbia University - Columbia Law School ( email )

435 West 116th Street
New York, NY 10025
United States

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