목차
Preface xi
Acknowledgments xiii
About the Authors xv
Chapter 1 Theories of Contract 3
Contract Theory: From Rationality to Critical Theory 3
Theories of Contract 5
Doctrine of Promissory Estoppel 8
Role of Bargaining Power 9
A Critical Review 10
Chapter 2 Rationality and Efficiency: LAE and BDT 13
Essence of the Theories 13
Law and Economics 14
Broad Goals 15
Key Assumptions 16
Implications 18
Behavioral Decision Theory 18
Broad Goals 23
Key Assumptions 24
Implications 25
A Comparison: Form Contracts 26
The Law and Economics View 27
The Behavioral Decision Theory View 28
Chapter 3 Critiquing LAE and BDT 35
Law and Economics 35
Efficiency/Welfare Goal Is Amorphous and Unsatisfying 35
Rational Choice Theory Is Inaccurate 38
"Just So" Stories 41
Descriptively Inaccurate 43
Normatively Unpersuasive 47
Behavioral Decision Theory 49
Fine as Far as It Goes 50
No Overarching Theory 50
Limitations and Complications 53
Influential? 56
Chapter 4 Application: Gift Promises and Promissory Estoppel 59
Gift Promises 59
Law and Economics Analysis 60
Why Give Gifts? 60
Why Promise to Give Gifts? 61
Are Gifts Valuable? 62
Is Enforcement of Gift Promises Worthwhile? 64
Summary 66
Behavioral Decision Theory 67
Why Give Gifts? 68
Why Promise to Give Gifts? 71
Are Gifts Valuable? 72
Is Enforcement of Gift Promises Worthwhile? 74
Promissory Estoppel 79
Law and Economics Analysis 80
Behavioral Decision Theory 81
Conclusion 83
Chapter 5 Bargaining Power in Contract Theory 85
Conceptions of Bargaining Power 90
Practical Conceptions of Bargaining Power 91
Legal Conceptions of Bargaining Power 98
The Role of Bargaining Power Disparities in Contract Law and Theory 103
Inequality of Bargaining Power as a Justification for Intervention in Private Agreements 104
Historical Arguments for Intervention 104
Justice, Equity, and Economic Efficiency as Justifications for Intervention 111
Arguments against Intervention on the Basis of Inequality of Bargaining Power 113
Economic Arguments against Intervention 114
Standards-Based Arguments against Intervention 115
Outcome-Based Arguments against Intervention 118
Chapter 6 Bargaining Power as Contract Theory 121
The Role of Bargaining Power in Contract 123
The Role of Bargaining Power at the Level of Individual Cases 123
The Role of Bargaining Power at the Level of Doctrine and Theory 124
Bargaining Power in Gift and Promissory Estoppel 133
Legally Cognizable Power in Gift Relationships 134
Legally Cognizable Power and Promissory Estoppel 142
Conclusion 147
Chapter 7 Idealism's View of Contract Law: Llewellyn and Dworkin 149
First Citadel of Idealism: Classical Contract Theory (Abstract Conceptualism) 153
The Public-Private Distinction 156
Will Theory and the Purification of Contract Doctrine 157
Realist Critique of the Public-Private Distinction 159
The Objective-Subjective Dialectic 160
Llewellyn's View of Objectivity 161
The Fact-Law Distinction 162
Formality as Servant of Concept and Context 163
Making Rules Work: Llewellyn 165
Llewellynian Conceptualism 167
General-Particularized 168
Situation-Sense 170
The Role of Rules in the Legal Order 172
Llewellyn's Singing Rule 173
Theory Building 174
Llewellynian Theory Building: The Is, the What Might Be and the Ought of Rule Application 175
Dworkinian Theory Building and the Law of Contracts 176
Chapter 8 A Theory of Interpretation 179
Rule Fit and Resolving Rule Nonfit 180
Abstract Conceptualism versus Dialectical Conceptualism 181
Llewellyn's Free Flow of Context 182
The Danger of Judicial Arbitrariness 182
Dialectical Conceptualism: Expanding the Conceptual Track of the Dual Track Theory of Interpretation 184
The Second Track: Applying "Big P" 185
Interpretation as Exercise in Theory Building 186
Transformative Nature of Law 187
Institutional versus Community Morality 189
Llewellynian Theory Building and the Dual Track Theory of Interpretation 191
Reconstructing Contract Doctrine 192
Reconstructing the Infancy Law Doctrine 192
The Reconstruction of Excuse 193
Expansion of Contractual Liability: Promissory Estoppel, Precontract, Implied Contract, and Gift Promises 196
Reasonable Person and the Contractual Self 198
Conclusion 200
Chapter 9 Critical Perspectives of Traditional Contract Doctrines 201
The Dominance of Conceptualism and Formalism in Classical Contract Theory 207
Classical Theory of Contract 207
The Limitations of Classicism and the Illusion of Assent 214
The Advent of Neoclassicism 222
Contemporary Realism, Critical Theories, and the Importance of Contextualism 226
Bargaining Factors and Behavioral Theory 230
Bias, Social Cognition, and Economics in the Transactional Context 232
Remedies for Discriminatory or Opportunistic Conduct in the Bargaining Context 239
Paternalism 239
Unconscionability as the Paradigmatic Example of Paternalism 242
Market and Legislative Remedies for Discrimination 247
Traditional Contractual Duties as Checks on Discriminatory Behavior 250
Conclusion 252
Index 253