A Pragmatist's View of Promissory Law with a Focus on Consent and Reliance

Abstract

This article discusses Professor Nate Oman's excellent new book, "The Dignity of Commerce," which makes an impressive case for how markets can produce "desirable" outcomes for society. In addition to a comprehensive account of what he calls "virtues" of markets, such as their tendency to produce cooperation, trust, and wealth, the book is full of useful and persuasive supporting information and discussions. Oman is not only a fan of markets, but he asserts that markets are the "center" of contract theory, and provide its normative foundation. Elaborating, Oman concludes that "contract law exists primarily to support markets" and that "contracts are valuable because they facilitate commerce and extend the reach of markets. It is their beneficial consequences that justify the enforcement of contracts." The article focuses on two of the many important issues generated by Oman's thesis. First, has Oman done enough to convince that markets are what he calls the "centerpiece" of contract law? Second, does his effort to present what is essentially a unitary normative theory of contract handcuff his analysis of particular contract issues and doctrines? I will argue that markets are important and contract law should and does play an important role in supporting markets. However, we should not demote other visions of contract law, but see them all as important ingredients in understanding the subject. By largely espousing a unitary, integrative theory of contract law, Oman may have boxed himself into a corner that leads to a few debatable propositions, including with respect to consent to boilerplate and reliance on promises, which the article takes up in some detail. The article concludes that "The Dignity of Commerce" makes a solid case for the importance and virtues of markets and is rich in discussion and detail. As with any excellent work, it makes the reader ponder accepted wisdom and adds to the reader's perspective. Further, in making his case for markets, Oman does an excellent job of introducing, discussing and debunking many counterarguments. My effort in this article is only to reflect on whether the market argument really can capture the entire contract-law field.