Private Law Theory

Abstract:
Contract law is dying. Admittedly, given earlier erroneous reports of its demise, including (most prominently) that of Grant Gilmore in 1974, we might evoke memories of the boy who cried “Wolf!” But if we remember that story, the boy did eventually turn out to be right. The wolf eventually showed up.

In this paper, written for a law review symposium on “Contract Law in 2025,” we look at contract law and adjudication simply as a technology — what Jacques Ellul called a “technique” — that is used by particular societies to solve particular problems at particular times. We do not think that this idea is controversial. While many legal theorists have argued over the years for some sort of deeper status for contract and other forms of private law, Karl Llewellyn and other Legal Realists emphasized the practical connection between contract and business practice, and that idea still largely dominates the field today. In this paper, we look at contract law and adjudication with a very wide lens to examine how the various pieces of interrelated contract technique correspond with the realities of the modern contracting world. The question for us is not whether particular parts of contract law are good or bad, but is the system working? And, more important, is it likely to work in anything like its current form in the world of the future?

We examine what we call both the structural and the rule techniques of contract law … (more)

Snyder, Franklin G and Mirabito, Ann M, The Death of Contracts (June 18, 2014). 52 Duquesne Law Review 345 (June 2014).

First posted 2014-06-26 18:18:01