A theory is robustly pluralist if it maintains that law is justified by multiple independent nonordered principles. Some have argued that robustly pluralist theories are deficient because they can provide no practical guidance when those principles conflict. The objection is misplaced when applied to pluralist theories of contract law.
This article demonstrates the possibility of a robustly pluralist and practically relevant theory of contract law by modeling a multipurpose law of contract. Five simple models are constructed to illustrate several purposes a contract law might serve, depending on preferences of the populace (self-interested utility maximizers, a preference for sharing, a preference for keeping morally binding promises) and the circumstances of exchange (one-off transactions, repeat play, reputation). Those models are then combined to explore how a contract law can be designed to serve several independent nonordered purposes at once with a focus on three doctrinal questions: rules of formation with respect to intent to contract, the choice between textualist and contextualist interpretation, and remedies.
The models suggest several reasons to think a robustly pluralist and practically relevant contract theory is possible. It is enough to resolve conflicts between principles on the level of rules, not case outcomes. The principles that animate contract law are relatively indeterminate in their practical prescriptions, making it easier to find a compromise among them. The practical implications of many principles depend on empirical facts about which we have limited knowledge, softening their prescriptive claims. Because the social interests in enforcement partly depend on who contracts and the circumstances of contracting, lawmakers can tailor rules to fit those interests. Default terms often enable balancing contract law’s duty-imposing and power-conferring functions. And the altering rules that govern what parties must do to avoid a default can take also account of the otherwise conflicting functions of contract law. The upshot of the analysis is a pluralist theory of contract, but an argument for the possibility of a robustly pluralist theory that also provides practical guidance through convergence by design.
Scholarly Commons Citation
Klass, Gregory, "Convergence by Design: Who Contracts and the Plural Purposes of Contract Law" (2023). Georgetown Law Faculty Publications and Other Works. 2556.