Dagan and Heller, ‘Choice Theory: A Restatement’

ABSTRACT
Choice theory advances a liberal approach to contract law. It brings jurisprudential coherence to the field, explains many puzzling doctrines, and offers a normatively-attractive reform program. In the years since choice theory first appeared, dozens of scholars have subjected it to the most rigorous scrutiny. As a result, choice theory has emerged stronger. This chapter restates the theory, and brings it up-to-date.

First, we refine the concept of autonomy for contract. Then we address range, limit, and floor, three principles that together justify contract law in a liberal society. The first concerns the state’s obligation to proactively to facilitate availability of a multiplicity of contract types. The second refers to the respect contract law owes to the autonomy of a party’s future self, that is, to the ability to re-write the story of one’s life. The final principle concerns relational justice, the baseline for any legitimate use of the contract power.

We conclude by highlighting choice theory’s most important jurisprudential payoff – how our account relates to and improves on the economic analysis of contract. Choice theory is the modest price that economic analysis must pay to account for individual freedom.

Dagan, Hanoch and Heller, Michael, Choice Theory: A Restatement (August 4, 2019), chapter in RESEARCH HANDBOOK ON PRIVATE LAW THEORIES (Hanoch Dagan and Benjamin Zipursky eds, Elgar Publishing, forthcoming 2020).

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