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

By Ian Ayres


Is the domain of contract waxing or waning? Lawrence Friedman\u27s 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 \u22robbed contract [law] of its subject-matter.\u22 Nine years later, Grant Gilmore expressed this idea similarly in The Death of Contract, where he regarded \u22the general law of contract as a residual category—what is left over after all the \u27specialized\u27 bodies of law have been added up.\u22 In stark contrast to this residual conception, many scholars have trumpeted a much more imperialist conception of contract\u27s 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

Topics: Law
Publisher: Yale Law School Legal Scholarship Repository
Year: 1999
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