Matthew Jennejohn (Columbia University School of Law) has posted Governing Innovative Collaboration: A New Theory of Contract on SSRN. Here is the abstract:
Herein I outline a new theory of contract and contract enforcement. This theory is based upon two claims, one positive and one normative. The first claim is that incomplete contracting theory fails to explain how economic actors govern production in the new economy. Theories of “pragmatic governance” do, however, capture how modern firms order their relationships. To support this first claim, evidence from collaborative contracts, recently made readily available to the public, is presented. The second claim is that both the traditional contextualist and the ascendant neoformalist approaches to contract enforcement undermine this new form of contract. Thus, a new philosophy is needed. A hybrid approach, integrating both formalism and problem-solving judicial intervention, provides such an alternative.