Both law students and law teachers have traditionally been drawn to conceptual projects that attempt to systematize the field of contract law. The reasons for this are easy to see: the field is doctrinally complex, few beginning students have any substantial experience with the kinds of fact patterns that arise in the cases, and the law is a locus of contestation over fundamental issues of economic liberalism that go to the heart of the capitalist system. Thus, there has long been both an appetite and a market for syntheses of the field that go beyond the usual study aids and hornbooks. A generation ago, Professor Grant Gilmore’s The Death of Contract, Professor Charles Fried’s Contract as Promise, and, for those with greater stamina, Professor Patrick Atiyah’s The Rise and Fall of Freedom of Contract addressed this intellectual need, and all three are still unquestionably worth the attention of first-year students and their teachers. But time passes, new problems arise, case law develops, and the frontiers of political contestation shift; and a new cohort of guidebooks is needed for a new cohort of lawyers.
This Review considers and compares three new books that offer theoretical syntheses of contract law and theory: Professor Douglas Baird’s Reconstructing Contracts; Professor Melvin Eisenberg’s forthcoming Foundational Principles of Contract Law; and Professor Brian Bix’s Contract Law: Rules, Theory, and Context. The books’ intended audiences overlap to a considerable extent, but each is addressed to a different ideal reader. Baird’s book, while providing much of interest to scholars and teachers, is self-consciously aimed at beginning law students (p ix); a number of chapters are based on material originally presented in lecture form at The University of Chicago (p ix). Eisenberg’s book, in contrast, integrates material from over two dozen law review articles published over the last twenty-five years and combines it with his own survey and critique of the work of many other leading scholars. It is thus primarily aimed at an audience of contract law scholars, though it will be an extremely valuable companion for any law student who makes the time for it (especially if the student’s contracts teacher has assigned Eisenberg’s casebook5). Bix’s book, the most eclectic of the three, aims to bridge the gap between these two audiences and to add a third as well; as an entry in the Cambridge Introductions to Philosophy and Law series, it is also intended as a legal primer for students of the philosophy of law and political science (p xi).
Any contemporary scholar offering a synthetic account of the law of contracts necessarily writes in the shadow of the great commentators of the field and of their intellectual debates. For at least the last century, contracts jurisprudence and pedagogy in the United States has been organized around two competing if overlapping intellectual paradigms: formalism and realism. This is not the place for a full account of the relationship between the two, but the main themes are easily summarized. Formalism emphasizes that, in order to understand the law, one must master a complicated but ultimately coherent framework of principles that can, with practice, be applied in a predictable and intersubjective fashion; on this view, the value of case analysis is that it focuses law students on a representative sample of concrete applications that illustrate the relevant rules and principles. Realism, in contrast, emphasizes that the law is not a logical system but rather a loosely connected set of practices, conventions, traditions, and values that sometimes exhibit regular form but sometimes do not. On this view, case law still merits study not because it illustrates fundamental legal principles, but because it embodies the law as it operates in practice. Blackletter doctrine is accordingly useful as a filing system, helpful in summarizing and referring to a complex body of legal material; but it is always imperfect, full of exceptions and contradictions, and subject to evolution and change. Knowing which doctrine will be applied in a given case, or whether a new category or exception is likely to be created, requires an appreciation of this larger context—what Professor Karl Llewellyn called “situation sense.”
The authors of the three books under review, like all of us who may read them, are heirs of this intellectual contest and thus are both formalists and realists, although in different measures. All the authors direct substantial attention to legal doctrine and, to various extents, attempt to pull it into some coherent order (though Bix is most comfortable with the idea that no complete coherence may be achieved).8 But at the same time, all of them take a pragmatic approach to the law of contracts, defining their approaches in opposition to those of classical writers such as Professor Christopher Columbus Langdell and Justice Oliver Wendell Holmes and rejecting any idea that the law can be properly understood without attending to the substance of the activity that it purports to govern.
This Review suggests that all three books have considerable merit and that all have different strengths; but none of the three really addresses what is foundationally distinctive about contract law—that is, what justifies our considering it a separate field of jurisprudence. The key feature of contract law, as opposed to the other standard first-year subjects, is that it affords private parties the power of lawmaking. Contractual obligations are primarily created by decentralized nonstate actors pursuing their own goals and plans, not by state officials making law and policy for society at large. Because they are decentralized and unofficial, contracts can be tailored to the needs of particular parties and particular transactions; because they are decentralized and unofficial, they raise distinctive problems of formality, interpretation, and enforcement.
Unlike tort or criminal law, contract law can operate without the presence or participation of state officials—or even of professional lawyers. As I tell my students on the first day of class, a few of them may become judges or legislators, and some may work at administrative agencies. In so doing, these few may have regular occasion to make law in the form of judgments, statutes, regulations, and rulings. But the bulk of them will not become public officials; rather, they will represent individual clients. And on behalf of those clients, as they write letters, return phone calls, seek to settle cases, and the like, they will be making law every day, and it will be contract law that they are making. To make good law and to help their clients make good law, these lawyers need to understand what they are doing. The insights that are afforded them by these three books are considerable, but they are not as great as they might have been, because the authors’ attentions remain focused on official rules of law as they are applied in public institutions.