An expressive theory of contract: from feminist dilemmas to a reconceptualization of rational choice in contract law.

• Author: Hadfield, Gillian K.
• Position: Symposium: Law and Incommensurability

INTRODUCTION

How do people choose? This question figures prominently in essentially any field that places human behavior within its province. Choice is a way of describing human action; we can always look at how one has behaved and indicate how this behavior has affected a choice, even if we do not think that choicemaking was part of an individual's self-understanding of her behavior. Distinctive disciplines have distinctive ways of understanding choice: Sociologists might see an individual's choices as determined by that person's socioeconomic identity, role models, or institutional structures; psychologists, a set of perhaps unconscious preoccupations rooted in early childhood experiences or current struggles with self-image; sociobiologists, genetic predispositions and the demands of the struggle for survival. From these differing perspectives flow different predictions, descriptions, and explanations for the behavior we observe.

As a discipline, law is interested in how people choose in order to judge behavior; to decide, from a normative perspective, whether and how behavior should be constrained or sanctioned. The particular predictive, descriptive, or explanatory theories of behavior that the law draws on thus can play a tremendously important role in the normative design of legal rules and institutions. Behavior understood to be driven by biological, psychological, or sociological factors beyond individual control, for example, may be treated in the law differently than behavior that is understood to be the product of free and deliberate choice. Both principled inquiries into moral accountability and pragmatic inquiries into the efficacy of legal rules aimed at modifying behavior depend on the underlying model of human action.

Of these models of human action, the one that holds perhaps the greatest sway in modern legal thought is the model of rational choice. This model sees human behavior as governed by an assessment of different courses of action and deliberative, reasoned choice among these alternatives. From this conception of choice flows the moral and legal condemnation of negligence or intentional harm, and the justification for attaching legal consequences to a failure to live up to contractual promises or statutory duties. Only when behavior is understood to be the product of deliberate choice is it possible to find conduct blameworthy or to hold out the expectation that legal consequences can influence conduct.

The idea of deliberate, rational choice is thus of importance in almost every field of law. In contract law, however, the idea takes on constitutive importance: The very obligations that an individual is under in contract are a product of that individual's choice. Indeed, this principle is what distinguishes contract from tort. In contract, one is obligated only if one chooses to be obligated. In tort, one is obligated regardless of one's desire to be obligated; the only choice is whether or not to run afoul of the obligation.

Or, at least, so goes the conventional doctrine. The idea of choice as the source of obligation in contract has come under scrutiny from a variety of scholars, most notably relational contract scholars and critical theorists such as feminists. Grant Gilmore, for example, announced in 1974 the "death of contract" as a distinctive mode of obligation(1)--if obligations in "contract" arise from considerations of reliance or unjust enrichment, from fairness or justice, rather than from the will of the contracting parties, as Gilmore observed they do, then contract is not contract; it is tort.(2) For relational contract scholars, modern contract law poses this puzzle: Is it possible to accept the idea that obligations arise from the norms of a contractual relationship without conceding the death of contract, of "choice"? For feminist contract scholars, the question is this: Is it possible to protect women from the oppressive consequences of harmful, constrained choices--in surrogacy or marital separation agreements, for example--without divesting women of agency? In all these instances, the idea of what it is to choose comes to the fore.

In this Article, I examine how our underlying conceptions of what it is to choose animate legal reasoning in contract. In particular, I contrast the economist's conception of rational choice--which I consider to be a sharply delineated representation of dominant legal conceptions of rational choice--with Elizabeth Anderson's conception of rational choice.(3) Building on the ideas that values are plural, incommensurable, and socially mediated, and that choice is rational when it is adequately expressive of values, Anderson constructs a vision of what it is to choose that is a substantial challenge to the dominant conceptions that undergird conventional contract logic. In doing so, I argue, she provides the basis for reconceptualizing choice in contract law in a way that should alter radically our understanding of the source of contractual obligation.

In particular, I defend in this Article the following claim. Conventional contract logic rests on the idea that when someone makes the choice to enter into a contract, she does so primarily to select a preferred future state of affairs; enforcement of the contract is then seen as a neutral act on the part of the law, which merely gives to the chooser what she chose. If we adopt Anderson's view of what it means to make a choice, however, this logic no longer applies. For in that vision we admit the possibility that the chooser assessed her options in light of what the choice would express rather than what future states it would secure. That is, the conventional logic is flawed when it asserts that the chooser has, necessarily, by deciding today to contract, indicated her choice among future states of affairs. Rather she has indicated her choice among current states of affairs; the choice among current states has consequences for the future only if the law attaches them. Analytically, Anderson's challenge to conventional rational choice theory raises a question that conventional contract logic thinks it has answered, namely, why does a person's choice at one point in time determine her legal obligations at another point in time? Why does a choice in contract have legal significance? It cannot be, after Anderson, simply because the law is a neutral arm of the state, handing out to contractors what they have asked for. Instead, the very problem of contract enforcement is that one of the contractors does not want what the state is giving.

Anderson's theory as applied here plays a negative role: It defeats an answer and thus begs an original question, but it does not answer it. It does not tell us that contracts should not be enforced or what the remedies for breach should be if a contract is enforced. Rather, I claim, it tells us that we need to identify reasons, bare fact that a choice to enter a contract has been legal significance to this particular exercise of choice. I suggest in this Article what some such reasons might be, and in particular, explore two: the protection of reliance interests and the protection of an instrumentally valuable convention. The principal point I defend, however, is that reasons for enforcement are needed, and I observe that turning to reasons such as reliance or convention would create a contract law that exhibits more differentiation among types of contract. Faced with the need in a given type of contract to identify a reliance interest or the instrumental value of a particular convention of contracting, we may be led to conclude that not all contracts are enforceable and, moreover, not all are enforceable in the same way or with the same remedy.

The Article is structured around a trio of feminist puzzles in contract law, but the claims of the Article are general and not limited in application to the puzzles. Rather, the puzzles are a device by which to reach the general claim I set out above. Each of these puzzles--what to do about surrogacy contracts, marital separation agreements, and a wife's guarantee of her husband's business debts--poses what feminist legal scholars know as the "dilemma of choice," namely, the conflict between promoting women's autonomy and freedom of choice on the one hand, and protecting women from the harmful consequences of choices made under conditions of inequality on the other.(4) I focus on these feminist puzzles not only for their intrinsic importance and interest, but also because they tap into and lay bare the core of what is problematic in contract law and logic more generally: the inadequacy of the conventional conception of rational choice. After exploring and comparing the conventional conception of rational choice and Anderson's reconceptualization of rational choice in generic terms, I revisit the feminist puzzles and discuss how our answers to the core questions of contract law--whether and to what extent a contract should be enforced--shift in light of Anderson's reconceptualization of what it means to choose rationally.(5) I conclude with some thoughts about how the analysis sheds light on the puzzles that motivate relational scholars and the currently obscured distinctions between commercial and other forms of contracting. A central conclusion is that Anderson's theory of choice preserves the bulk of conventional commercial contract law but provides insights into how contract works outside of this traditional core.

1. FEMINIST PUZZLES IN CONTRACT: THE DILEMMA OF CHOICE

   What makes a case a puzzle in contract law is deep uncertainty about the right answer to two questions: Should a promisor be legally bound by her promise? If so, to what extent, that is, for what remedy should she be held liable? For feminists, these questions engage difficult issues in a variety of settings in which women make contractual choices. I analyze the three particularly salient puzzles mentioned above in light of the feminist...