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Copyright The Regents of the University of California, 1983.

UCLA Law Review

ESSAY: CRITICAL APPROACHES TO CONTRACT LAW. *



* 1983, Jay M. Feinman

APRIL, 1983

30 UCLA L. Rev. 829

Author

Jay M. Feinman +

Excerpt

This Essay analyzes modern contract law 1 from the perspective of critical legal studies. The topic and time are appropriate. Contract law furnished the ground on which the most elegant edifice of classical legal thought was erected and on which the realists who attacked that edifice fought their greatest battle. 2 It is now a focal point for members of the critical legal studies movement challenging the dominant patterns of American legal thought. 3

This Essay reflects the predominant strains of inquiry in critical legal studies. Part I examines contract law as an intellectual construct. This involves analysis of the structure of the field, the logic of contract doctrine, and the theoretical consistency of contract principles. Part II looks at the operation of that intellectual construct in society. This section examines the role of contract law as a market facilitator and as a legitimation device. Part III considers contract law as a utopian enterprise, a tool for constructing a new vision of exchange relations and a more humane and democratic social order.

I. THE THEORY AND STRUCTURE OF CONTRACT LAW

A common assumption pervades first-year courses in contract: once upon a time we had a bad, old, classical law of contract which spoke in abstractions such as "freedom of contract," but now we have a good, new, modern law which combines principle and policy and has none of the fundamental defects of classical contract law. That assumption is false. Modern contract law is an attempt to resolve ...
 
 
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