Commentary

In Contracts as Organizations, Professors D. Gordon Smith and Brayden King make an important and much-needed contribution to the empirical study of contracts. As they document in their article, empirical studies of real-world contracts have flourished in recent years, making it appropriate to pause and consider the intellectual framework that has motivated this growing body of scholarship. Not surprisingly, to accomplish this task they conduct their own empirical study; not of contracts per se, but of contracts scholarship. What they find is an overwhelming bias in the analytical framework used to examine contracts across a variety of disciplines. In short, economic theory—in particular, concern with addressing the risk of what the authors call “advantage taking”—has reigned supreme as the intellectual paradigm for examining contracts. Indeed, among the fifty-two articles they identify as empirical studies of contracts, forty-eight (about 92%) address research questions motivated by economic theory. In many ways, it is a surprising finding considering the assortment of non-economic theories that have come to characterize the study of contract law.