1998 Ladd Lecture: Empire or Residue: Competing Visions of the Contractual Canon

Abstract

Is the domain of contract waxing or waning? Lawrence Friedman's pathbreaking 1965 book, Contract Law in America, characterized contract law as covering a residual category of relatively unimportant transactions. He argued that whenever particular types of transaction became sufficiently salient—such as those concerning employment or insurance—specialized regulation was promulgated that "robbed contract [law] of its subject-matter." Nine years later, Grant Gilmore expressed this idea similarly in The Death of Contract, where he regarded "the general law of contract as a residual category—what is left over after all the 'specialized' bodies of law have been added up." In stark contrast to this residual conception, many scholars have trumpeted a much more imperialist conception of contract's domain. John Langbein, for example, recently opined: Contract has become the dominant doctrinal current in modern American law. In fields ranging from corporations and partnership, to landlord and tenant, to servitudes, to the law of marriage, scholars have come to understand our legal rules as resting mainly on imputed bargains that are susceptible to alteration by actual bargains. Under this view, the bedrock principles of contract inform (or should inform) an ever increasing range of legal relationships.