Ori Katz, ‘Mapping the Diversity of Thought – An Attitude Theory of Contract Law’

A vast body of literature has been devoted to explaining the values and policies underpinning existing contract law doctrines, and the principles that regulators and courts should adhere to when shaping contractual legal policy. However, a descriptive account of how people actually think about contract law, and the classification of the dilemmas that divide laypersons and jurists as to how to shape contract law, have drawn much less attention. This article is the first attempt to develop an empirically-based attitude theory of contract law. The theory aims to identify the normative conflicts that explain why people are divided on how contractual disputes should be resolved. The article maps the ideological diversity regarding contract law using four key conflicts: individualism versus solidarity; formalism versus anti-formalism; egalitarianism versus non-egalitarianism; and instrumental/economic versus intrinsic perspectives.

By employing a series of exploratory and confirmatory studies involving over 2,000 participants – MTurk workers, a US representative sample, and Israeli law students – I develop a Contractual Attitude Scale. This multi-dimensional scale measures contractual attitudes toward the first three of the aforementioned four conflicts. Attitudes concerning these conflicts were generally found to be discrete, consistent, and varied across participants. In contrast, attitudes toward Instrumentalism were not consistent in participants’ responses. Importantly, this scale captures attitudinal variance that cannot be accounted for through self-reported political worldviews. Analyzing participants’ characteristics demonstrated, in part, that Israeli law students are less formalistic and less egalitarian than the US sample, and that people with academic education tend to be more individualistic than those without.

Katz, Ori, Mapping the Diversity of Thought – An Attitude Theory of Contract Law (September 17, 2021). Southern California Interdisciplinary Law Journal, forthcoming.

First posted 2021-11-13 10:00:21

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