Contract's Revenge: The Waiver Society and the Death of Tort

Abstract

Zombie contract has risen from the dead to put a stake through the heart of tort.

A half century ago, leading observers of American law reflected on what they believed was the end of an era. For more than a century, from the 1830s, in what Roscoe Pound called "the formative era" of American law, up at least until the New Deal, significant swaths of the American common law's private law doctrines were distinctively organized around contract. By the middle of the twentieth century, however, the basic structure of the common law's contractual reasoning seemed to be under attack. "[I]t is the fate of contract," proclaimed leading scholar Grant Gilmore in 1974, "to be swallowed up by tort." Dean William Prosser described with equal confidence an "assault upon the citadel of privity"-the doctrine that had once supported the predominance of contract in the law of products liability; courts, Prosser said, had at last "throw[n] away the crutch" and based their rulings on tort obligations at the expense of contractual liabilities. Gilmore confidently predicted "the death of contract." He and Prosser believed they were watching the advent of an age in which tort's public obligations would dominate where previously the rights and duties of contract law had ruled. Leading torts scholar Greg Keating puts the point bluntly: "[t]ort has triumphed over contract and property."

History has turned out to be more complicated. Contract has found ways to reassert itself. Public dispute resolution has given way to the private contractual settlement of claims. Increasingly, contract excludes trials altogether. Sometimes it does so in advance, as Margaret Jane Radin, Judith Resnik, and others have shown, through contractual arbitration clauses, which have shunted into private fora the resolution of the publicly imposed obligations on which Gilmore and Prosser focused two generations ago. Sometimes it does so after the fact in the form of settlement contracts, which now dominate the resolution of civil disputes like never before in the history of the common law.

In this Article, we draw attention to a further way in which contract is wreaking its revenge. Virtually everywhere one goes in contemporary life, there are waivers to be signed: in apartments and housing developments, in daycare centers and nursing homes," in big box stores and birthday party.