Abstract

http://ssrn.com/abstract=1125022
 
 

Footnotes (95)



 


 



From Langdell to Law and Economics: Two Conceptions of Stare Decisis in Contract Law and Theory


Jody S. Kraus


University of Pennsylvania Law School

2008


Abstract:     
In his classic monograph, The Death of Contract, Grant Gilmore argued that Christopher Columbus Langdell, Oliver Wendell Holmes, and Samuel Williston trumped up the legal credentials for their classical bargain theory of contract law. Gilmore's analysis has been subjected to extensive criticism, but its specific, sustained, and fundamental charge that the bargain theory was based on a fraudulent misrepresentation of precedential authority has never been questioned. In this Essay, I argue that Gilmore's case against the classical theorists rests on the suppressed premise that the precedential authority of cases resides in the express judicial reasoning used to decide them. In contrast, I argue that the classical theorists implicitly presuppose that the precedential authority of cases consists in the best theory that explains their outcomes, even if that theory is inconsistent with the case's express judicial reasoning. The classical view of precedential authority completely defuses Gilmore's charge of fraud. In Gilmore's view, merely demonstrating the inconsistency between the proposition for which the classical theorists cited a case and the express reasoning in that case suffices as proof of misrepresentation. But in the classical theorists' view, the express reasoning in a case is simply a theory of its precedential authority, which, like any theory, can be wrong. Thus, the classical theorists simply reject Gilmore's claim that a case cannot properly be cited for a proposition inconsistent with its express reasoning. The real dispute, then, between Gilmore and the classical theorists is over the nature of precedential authority and not the content of contract law.

Having reframed the classic death-of-contract debate, I then trace these competing conceptions of precedential authority through the major schools of contemporary contract theory. I argue that a contract theory's embrace of one view instead of the other can be explained by the relative priority it accords to each of the two components in a conception of adjudicative legitimacy. A conception of adjudicative legitimacy consists in a theory of what it means for a decision to be based on law and a theory of what is required for law to be justified. I explain why theories according priority to the former tend to subscribe to the precedents-as-outcomes view, while theories according priority to the latter tend to favor the express reasoning view. The Essay concludes by arguing that the economic analysis of contract law subscribes to the precedents-as-outcomes view and therefore is the contemporary jurisprudential successor to the late nineteenth-century classical theorists.

Number of Pages in PDF File: 39

Keywords: Gilmore, Langdell, Holmes, Williston, Stare Decisis, Precedent, Formalism, Contract, Law and Economics

JEL Classification: K12, K10, K00

working papers series





Download This Paper

Date posted: May 6, 2008  

Suggested Citation

Kraus, Jody S., From Langdell to Law and Economics: Two Conceptions of Stare Decisis in Contract Law and Theory (2008). Available at SSRN: http://ssrn.com/abstract=1125022 or http://dx.doi.org/10.2139/ssrn.1125022

Contact Information

Jody S. Kraus (Contact Author)
University of Pennsylvania Law School ( email )
3501 Sansom Street
Philadelphia, PA 19104
United States
Feedback to SSRN


Paper statistics
Abstract Views: 1,265
Downloads: 241
Download Rank: 75,303
Footnotes:  95

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo4 in 0.359 seconds