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The Long Shadow of Doctrine

This Symposium presents an imagined conflict and then a puzzle. The conflict dates back to the 1930s, when American Legal Realism challenged the (old) doctrinalism, a creaky relic of a bygone era. For decades, the two schools clashed over the importance of doctrine in determining the outcome of legal disputes. One side insisted that doctrine is essential. The other countered that rules are indeterminate and decide few cases. Along the way, interdisciplinary scholarship joined the fray, on the side of Realism. Yet, doctrinalism proved a stubborn adversary. It remains unvanquished. To the contrary, a “New Doctrinalism” has taken the place of the old. Doctrinalism’s persistence is the mystery the symposium contributors hope to solve.

In Professor Tess Wilkinson‐Ryan’s contribution, Intuitive Formalism in Contract, she describes the continuing “doctrinalism” of consumer contract law and the failure of legal rules to adapt to “our changing contractual culture.” Based on her own empirical investigations into the psychology of consumer contracting, she concludes that consumers think contract law is highly formalistic. Moreover, consumers seem to make contractual decisions based on their formalist intuitions. Although Wilkinson‐Ryan cannot yet pinpoint the source of consumers’ legal instincts, they likely derive from the “consumer experience with contract law.” She observes that a consumer “discerning a law of contracts from a sample comprised almost entirely of boilerplate would come quickly to the conclusion that contract law is highly formal.”

This Response draws on Professor Wilkinson‐Ryan’s essay, as well as other interdisciplinary scholarship, to assess whether interdisciplinary ideas really pose a threat to contract “doctrinalism,” as the Symposium organizers suggest. The Response argues against that premise, finding that interdisciplinary scholars take doctrine seriously. Doctrine often matters in the stories they tell, just not, perhaps, in the way that doctrinalists would predict. This research finds doctrine’s influence to be deep and broad, casting a shadow that reaches far beyond the judicial resolution of disputes. The Response concludes with a brief reflection on the policy implications of contract doctrine’s long shadow.