Lawyers, Law, and Contract Formation: Comments on Daniel Keating’s ‘Exploring the Battle of the Forms in Action’

Attempting to infuse the austerity of theory with a dose of reality, an intrepid group of legal scholars has left the security of the office and ventured into the work-a-day world of commercial practices. The information that they have gathered and are sharing with the rest of us is furthering our understanding of the interaction between commercial law and commercial practice. Embedded in much of the research they have generated is the not-so-flattering conclusion that law professors suffer from a self-serving bias. Those of us in the academy engage in the assumption, often unstated or even unacknowledged, that the law significantly affects the behavior of parties to a contract. This belief in the force of law applies to all aspects of the contracting process: contract formation, contract interpretation, and the remedies available after a contract has been breached. This assumption of the importance of law enhances the status of commercial law professors in that it makes what we teach, and by implication us, important. The easy link between statutes and cases – law on the books – and actual contracting practice – law in action – has been strained severely, if not shattered, by the various studies that have been produced so far, both in this Symposium and elsewhere. The stated goal of the recent empirical research in commercial law is to provide a richer understanding of the forces that shape transactions between private parties, with this understanding often being that law is less important than we may have thought before. While various researchers are using differing methodologies to examine commercial practice, one especially fruitful course of inquiry is to talk to the participants in the actual transactions. As an illustration, consider Professor Dan Keating’s excellent contribution to this Symposium. Professor Keating explores the role that standardized forms play in contracting behavior by talking to both buyers and sellers of goods. This methodology traces back at least to Stewart Macaulay’s famous study of business practices in Wisconsin. The picture drawn by these “law in action” pieces enriches our understanding of commercial law, with the conclusion inevitably being that one cannot ascertain the way in which private parties contract between themselves by simply reading the applicable state-supplied legal rules. One has to talk to the players involved.