Stewart Macaulay and the Law of Contract

Stewart Macaulay has taken the complicated, almost ironic, position of a prominent contract law theorist who doubts that contract law plays a significant role in contracting practice. And it is his insistence on focusing on how parties actually behave in relation to such transactions that keeps Macaulay’s ideas central and influential for many working in contract scholarship. Macaulay has taught contract law scholars many things: to focus on practice not theory, on relationships not models, and on the power and politics behind everything. Those of us working in this area have learned from Macaulay to be attentive to the way the rules of contract law are used as part of ongoing transactional relationships. At the same time, as he reminded us, we must be conscious that the answer to such inquiries will almost certainly be different for different kinds of transactions. Consumers and employees generally have a different contracting experience than do large corporations, and even in business-to-business transactions, one-shot interactions across industries is likely to be different from transactions that occur within a close-knit business community or as part of a long-term supply arrangement. And we need to pass along these insights to our students, as a necessary if small first step towards improving contract law and practice.