Posted by Randy Barnett:
The Richness of Contract Theory:
http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1118955716
I have now fixed the link to my review of Bob Hillman's book, The
Richness of Contract Law (not that anyone complained). The review is
called, [1]The Richness of Contract Theory, and here is the abstract:
In his book, "The Richness of Contract Law," Robert Hillman
criticizes "highly abstract" or "unifying" contract law theories
that, he says, fail to reflect adequately the complexities of
existing contract law. In his review, "The Richness of Contract
Theory," Randy Barnett takes issue with this claim and identifies
the generational dispute between legal "realists," whose approach
is shared by Professor Hillman, and legal "theorists" of whom
Hillman is critical. Professor Barnett's thesis is that the very
purpose of modern legal theories is to simplify a complex reality
so as to better understand, cope with, and reform legal doctrine.
Barnett then discusses Hillman's recent important empirical
research on promissory estoppel. Hillman's findings represent a
partial corrective to the previous consensus against a "reliance
theory" of promissory estoppel insofar as they establish that
reliance is a necessary element of promissory estoppel. However,
his data also support the Willistonian conception of promissory
estoppel by showing that a promise is also required. Ironically,
Hillman is, Barnett claims, insufficiently sensitive to the
complexity of the cases he surveys and the need to distinguish
"reasonable" or "justified" from "unreasonable" or "unjustified"
reliance. A more sophisticated analysis of these cases is provided
by Professor Sidney DeLong who also is, not coincidentally, more
receptive than Hillman to the richness of modern contract theory.
While supporting Hillman's finding concerning the requirement of
reliance, DeLong also notices courts frequently distinguishing
"performance" from "enforcement" reliance. Enforcement reliance is
reliance accompanied by a manifested intention by the promisor to
be legally bound, or what Barnett has previously called consent.
References
1. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=186548
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