The Richness of Contract Theory

When I teach the doctrine of good faith performance, I assign an exchange between two distinguished contracts scholars, Robert Summers and Steven Burton, that has come to be known as the “Summers-Burton” debate. This debate is interesting not only for the contrasting views of its protagonists concerning the doctrine of good faith, but also because of the generational shift in modes of scholarship it represents. In the 1950s and 1960s, contracts scholars, like so many others, rejected so-called “conceptualist” or “formalist” approaches that attempted to dictate the outcome of cases with general concepts and rules. Contracts scholarship was dominated by supposedly “realist” inquiries into the complexities of actual commercial practice, inquiries which sought to identify the multiple factors or considerations that judges do or should take into account when deciding cases. Usually it was denied that these factors could or should be weighted or organized in some manner in advance of a legal dispute. Any effort to reduce the vast complexity of the real world of commercial practice to some verbal formula was dismissed as “reductionist” or “simplistic.”