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Unity and Pluralism in Contract Law

33 Pages Posted: 29 Dec 2004  

Nathan B. Oman

William & Mary Law School

Abstract

The contemporary philosophy of contract law must reconcile apparently incommensurable theories of contractual obligation, namely those based on moral rights and those based on economic efficiency. In his recent book, Contract Theory, Stephen Smith seeks to solve this problem by arguing that economic theories fail to explain contract law while rights-based theories adequately account for the law. His argument, however, rests on a misunderstanding of economic and legal reasoning, and results in implausible claims about the contours of contract law. Rather than dismissing one or the other of these two approaches, philosophers of contract law should look for ways of providing a principled integration of them. This paper argues that the Rawlsian notion of the priority of liberty provides one path toward such a principled integration.

Keywords: contract law, philosophy of law, Rawls, law & economics

Suggested Citation

Oman, Nathan B., Unity and Pluralism in Contract Law. Michigan Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=641442

Nathan Oman (Contact Author)

William & Mary Law School ( email )

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P.O. Box 8795
Williamsburg, VA 23187-8795
United States

HOME PAGE: http://www.nathanoman.com

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