Freedom, Choice, and Contracts

Hanoch Dagan, Tel Aviv University
Michael A. Heller, Columbia Law School

Version of June 18, 2018.


In The Choice Theory of Contracts, we explain contractual freedom and celebrate contract types. This Issue offers penetrating critiques. Here, we reply by refining choice theory and showing how it fits and shapes the contract canon.

I. Freedom. (1) Charles Fried challenges our account of Kantian autonomy, but his views, we show, largely converge with choice theory. (2) Nathan Oman argues for a commerce-enhancing account of autonomy. We counter that he arbitrarily slights noncommercial spheres central to human interaction. (3) Yitzhak Benbaji suggests that choice theory’s commitment to autonomy is overly perfectionist. Happily, in reply to Benbaji, we can cite with approval Charles Fried’s point that contract types are “enabling our liberties.”

II. Choice. (4) Aditi Bagchi criticizes our inattention to impediments to choice. We show how choice theory’s commitments to both multiplicity and relational justice ameliorate these impediments. (5) Gregory Klass explores parol evidence to highlight the mechanics of choice. We substantially concur and show how such mechanisms can ensure voluntariness, an essential element of choice. (6) Oren Bar-Gill and Clayton Gillette question the institutional capacity of existing legal actors to implement choice theory. Working from the example of cohabitation, we offer a somewhat more optimistic view.

III. Contracts. (7) Peter Benson argues our focus on the rational slights the reasonable. Although we did not use this Rawlsian vocabulary, choice theory complies with its strictures, more so than transfer theory. (8) Daniel Markovits and Alan Schwartz argue provocatively that contract theory must capitulate before pluralism (as they endorse), leverage it, or fall victim to an embracing approach (their charge against us). We reject the charge choice theory is foundationally value pluralist. Instead, we cabin pluralism and put it to work. (9) The Contract Canon starts on the next big step for choice theory by explaining existing doctrine (rebutting Benson on lack of fit) and helping adjudicate contract practice (countering Markovits and Schwartz on the vices of our pluralism). Choice theory fits and shapes the contract canon.

Each paper in this Issue advances the field; each prompts us to refine choice theory – all steps we hope toward a more just and justified law of contract.