New Contracts Scholarship

Jody Kraus’s: From Langdell to Law and Economics: Two Conceptions of Stare Decisis in Contract Law and Theory, has just come out in the Virginia Law Review.  Here’s the abstract:

In his classic monograph, The Death ofContract, Grant Gilmore argued that Christopher Columbus Langdell,Oliver Wendell Holmes, and Samuel Williston trumped up the legalcredentials for their classical bargain theory of contract law.Gilmore’s analysis has been subjected to extensive criticism, but itsspecific, sustained, and fundamental charge that the bargain theory wasbased on a fraudulent misrepresentation of precedential authority hasnever been questioned. In this Essay, I argue that Gilmore’s caseagainst the classical theorists rests on the suppressed premise thatthe precedential authority of cases resides in the express judicialreasoning used to decide them. In contrast, I argue that the classicaltheorists implicitly presuppose that the precedential authority ofcases consists in the best theory that explains their outcomes, even ifthat theory is inconsistent with the case’s express judicial reasoning.The classical view of precedential authority completely defusesGilmore’s charge of fraud. In Gilmore’s view, merely demonstrating theinconsistency between the proposition for which the classical theoristscited a case and the express reasoning in that case suffices as proofof misrepresentation. But in the classical theorists’ view, the expressreasoning in a case is simply a theory of its precedential authority,which, like any theory, can be wrong. Thus, the classical theoristssimply reject Gilmore’s claim that a case cannot properly be cited fora proposition inconsistent with its express reasoning. The realdispute, then, between Gilmore and the classical theorists is over thenature of precedential authority and not the content of contract law.
 
Having reframed the classic death-of-contract debate, I then tracethese competing conceptions of precedential authority through the majorschools of contemporary contract theory. I argue that a contracttheory’s embrace of one view instead of the other can be explained bythe relative priority it accords to each of the two components in aconception of adjudicative legitimacy. A conception of adjudicativelegitimacy consists in a theory of what it means for a decision to bebased on law and a theory of what is required for law to be justified.I explain why theories according priority to the former tend tosubscribe to the precedents-as-outcomes view, while theories accordingpriority to the latter tend to favor the express reasoning view. TheEssay concludes by arguing that the economic analysis of contract lawsubscribes to the precedents-as-outcomes view and therefore is thecontemporary jurisprudential successor to the late 19th centuryclassical theorists.

Happy reading!

[Jeremy Telman]