October 22, 2011
"Empirical and Lyrical: Revisiting the Contracts Scholarship of Stewart Macaulay"
Posted by Gordon Smith

I am sitting in Lubar Commons at the University of Wisconsin Law School, attending the excellent conference honoring the work of Stewart Macaulay. (If you want to access Stewart's papers, you can find them here.) I have written about Stewart's famous 1963 paper on several occasions (see, e.g., here and here), and my contribution to this symposium returns to that work, although with a slightly different focus. In the "Social Dimensions of Opportunism," I argue that contract law serves the valuable function of boundary enforcement. Rather than regulating all of the deviations and adjustments that are common in contractual relationships, an important role of contract law is to constrain extreme deviations from social norms, thus reinforcing agreements precisely in contexts where informal social sanctions are weakest.

While many of the presenters are focusing on the 1963 paper, I am enjoying the chance to become more closely acquainted with Stewart's other works. My contribution and the contribution of my co-panelist, Bob Scott, both depend significantly on Stewart's 2003 paper, The Real and the Paper Deal, which should resonate with those who write about incomplete contracts. By the way, Bob is concerned about the decline of relational scholarship in the legal academy, and he calls for a reconciliation of economically and sociologically oriented relational contract scholars. Good stuff.

Ethan Leib has written an interesting analysis of consumer contracts ("What is a Relational Theory of Consumer Form Contract?"), using Stewart's 1966 paper, Private Legislation and the Duty to Read -- Business by IBM Machine, the Law of Contracts and Credit Cards, as a springboard. And I am particularly interested in a paper by Gillian Hadfield and Iva Božović entitled "Scaffolding: Using Formal Contracts to Build Informal Relations to Support Innovation." The authors have done a rough replication of Macaulay's 1963 study, interviewing California business people rather than Wisconsin people. In this paper, the authors argue that formal contracts and contract doctrine serve as "scaffolding" for the development of the contracting relationship.

The conference is still going -- and someday these papers will appear in a conference volume -- but this has been another great production by the Wisconsin contracts group. 

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