Macaulay puts law in its place

Listen to this article

If you went to law school, chances are you’ve read Stewart Macaulay’s book — and not just because it was required reading.

Macaulay, an emeritus professor of law at the University of Wisconsin Law School, wrote a contracts-case book in 1996 that is still being used in contracts courses today.

And that book was built on the foundation of relational contract theory, something that Macaulay was among the first to espouse.

“I was one of the first to say it, but there all kinds of people that believe this, though maybe not as many as I’d like,” he said.

Even if you haven’t read his book, chances are you’ve heard of his ideas in some shape or form. Their underlying principle is fairly simple.

“It really comes down to trying to make a plea: ‘Can’t we focus on lawyers, problem solving, law as applied rather than theories about the philosophy behind the statement of the rules?’” Macaulay said.

In 1963, the year when Macaulay published his groundbreaking research, such ideas were novel.

“People say I don’t believe in rules,” he said. “No! When a rule is vitally important it’s vitally important. But when is it important?”

Even though Macaulay never worked in private practice, he was able to find a discrepancy between how contract law was taught and how contracts worked in the real world.

“I knew that I lacked something,” he said. “My curiosity was aroused by my father-in-law. And he was reacting to my telling him about teaching Lon Fuller’s theories – this is the most honored contracts professor of the Harvard Law School…

And somebody who knew it thought it was … limited and being broadcast as if it were the whole story.”

Before he retired in 2008, Macaulay was researching the effect of computers and globalization on contracts. Now, at 82, he is still publishing articles – he put his last one out in 2013 and has another on the way.

“I’m fascinated with human problems,” Macaulay said. “Law contributes to the solution of some of them. Law exacerbates others.”