Empire or Residue: Competing Visions of the Contractual Canon

Abstract

A lively and on-going scholarly debate centers on whether contract is dead or whether contract principles inform an ever increasing range of legal relationships. In reaching wildly variant conclusions, different scholars have used different definitions of "contract." In this paper, I adopt a weak version of the imperialist view of contract's domain and suggest that an area of law should be considered contractual if parties can privately reorder a substantial portion of their legal relations. This definition, in turn, provides a framework for the evaluation of normative contract issues, including: (1) whether particular rules should be mandatory or merely defaults; (2) and if defaults, which default should be chosen?; and (3) what should be the necessary and sufficient conditions for contracting around the default?