70 CALIFORNIA LAW REVIEW [Vol. 103:67
online contracts.
4
My concern is more fundamental than these particular
problems—it is with the foundational doctrine of offer and acceptance itself.
5
In the last twenty years or so, there have been some interesting
contributions to foundational contract-formation doctrine from legal-economic
scholars. In 1990, Avery Katz analyzed contract formation in terms of game
theory.
6
His analysis was largely descriptive and informative, showing the
effects of various bargaining rules on the decisions of rational (and imperfectly
rational) parties.
7
For example, Professor Katz identified several sorts of
transaction costs that legal rules governing bargaining might create, including
costs of communication and, probably more notably, costs of “strategic
behavior.”
8
Thus, for example, parties might bluff, adopt hard lines in
bargaining, and do other things that have the potential to destroy or enhance
value. As a whole, Katz sought to provide clearer ways to consider formation
doctrine and to understand its incentive effects.
Unconscionability, 70 U. CHI. L. REV. 1203 (2003); John E. Murray, Jr., The Dubious Status of the
Rolling Contract Formation Theory, 50 D
UQ. L. REV. 35 (2012).
4. See, e.g., Juliet M. Moringiello, Signals, Assent and Internet Contracting, 57 R
UTGERS L.
REV. 1307 (2005); David A. Szwak, Uniform Computer Information Transactions Act [U.C.I.T.A.]:
The Consumer’s Perspective, 63 L
A. L. REV. 27 (2002).
5. Even Grant Gilmore’s wide-ranging book criticizing classical contract law does not offer a
specific critique of foundational offer-and-acceptance doctrine. See generally G
RANT GILMORE, THE
DEATH OF CONTRACT (Ronald K.L. Collins ed., 2d ed. 1995).
Ian R. Macneil and Stewart Macaulay’s relational view of contracting addresses broader concerns
but does recognize the potential “fuzziness” of formal acceptance that I discuss in Parts II and III. For
example, Macneil has written:
The context of “I accept employment on your terms” is a recognition of the inevitable
tentativeness of consent to a relation, the inevitable mutuality of future superseding events,
and all the rest of the elements which, in a relation, cause even the clearest expression of
adhesive consent to suffer from essential fuzziness.
Ian R. Macneil, The Many Futures of Contracts, 47 S.
CAL. L. REV. 691, 771 (1974); see also Stewart
Macaulay, Non-Contractual Relations in Business: A Preliminary Study, 28 A
M. SOC. REV. 55, 55
(suggesting that businesspeople often do not “plan exchange relationships completely”). Though my
approach to contract law is sympathetic with many features of the relational theorists’ arguments, the
principles I develop do not generally turn directly on the status of a prior relationship. My inquiry is, in
some sense, broader and more fundamental, and it aims to analyze contract doctrine directly and
generally. Cf. Melvin A. Eisenberg, Why There Is No Law of Relational Contracts, 94 N
W. U. L. REV.
805, 821 (2000) (praising relational contract theory in several respects but noting that it has not
developed a “law of relational contracts” because there is “no significant difference between contracts
as a class and relational contracts” and, accordingly, “relational contracts must be governed by the
general principles of contract law, whatever those should be.”).
6. See Avery Katz, The Strategic Structure of Offer and Acceptance: Game Theory and the
Law of Contract Formation, 89 M
ICH. L. REV. 215 (1990).
7. Katz agrees with me about the relative paucity of analytical study of offer-and-acceptance
rules, at least as of 1990 and with regard to economic commentary:
[T]he mechanical rules of contract formation so beloved to hornbook authors and bar
examiners, and the related body of legal doctrine that helps imply the content of the contract
from the history of the bargaining, largely have escaped attention from those legal scholars
influenced by economics. The preponderance of the literature treats such rules as largely
conventional, and accordingly irrelevant for purposes of policy analysis.
Id. at 218 (footnote omitted).
8. See id. at 226.