Contract Formalism, Scientism, and the M-word: A Comment on Movsesian’s Under-theorization Thesis
Professor Mark Movsesian has proposed an interesting thesis on the similarities and differences between classical and contemporary contract formalism. 1 He compares the work of Samuel Williston, exemplifying the classical formalism of the early twentieth century, with contemporary contract formalism, which arises primarily out of an academic consensus that contract law should be directed to economic efficiency, and formalism, which at least in most circumstances, promotes efficiency and welfare maximization. The most significant difference is what Professor Movsesian describes as the undertheorization of classical formalism. Perhaps to oversimplify, classical formalism was concerned with the pragmatic resolution of doctrinal disputes, and the development of a coherent body of contract law as a self-contained body, proceeding, by and large, by means of deductive or inductive logic, from case to case to case. Contemporary formalism, by comparison, is theorized because legal scholars now attempt through cross-disciplinary study to explain why formalism, normatively, is preferable to the alternatives.