11 Pages Posted: 27 Apr 2006
Date Written: April 25, 2006
In two recent essays, Professor Mark L. Movsesian has suggested that a significant difference between the classical formalism of Williston and the formalism of contemporary contracts scholars is the extent to which the earlier work was under-theorized. I want to suggest an area in which there is a consistency to the under-theorization between the classical and the modern contract formalists: the extent to which theorization in anything that approaches metaphysics is, and has been, consistently anathema. Modern theorizing is overwhelmingly of a particular form: dispassionate social science inquiry into how we tick, rarely questioned but implicit norms shaped solely around the utilitarian, if not material, consequence of choices, all seasoned by the occasional post-modern expression of futility and desperation around the indeterminacy of moral issues. It does not address the way we might think about solving the problem outside of the formal models (whether classically or economically based) of the law.
In a brief response to Professor Movsesian, I encourage debating over contract law not just in the context of pragmatics of instrumental reason, but as part of a broader inquiry into and struggle with the ends to which any endeavor is directed.
Keywords: contracts, Williston, metaphysics, pragmatism, Posner, scientism, formalism
JEL Classification: K13, K20
Suggested Citation: Suggested Citation
Lipshaw, Jeffrey M., Contract Formalism, Scientism, and the M-Word: A Short Reaction to Professor Movsesian's Under-Theorization Thesis (April 25, 2006). Tulane Public Law Research Paper No. 06-05. Available at SSRN: https://ssrn.com/abstract=899210 or http://dx.doi.org/10.2139/ssrn.899210