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

23 Pages Posted: 20 Apr 2019

See all articles by Ryan Martins

Ryan Martins

Yale University, Law School, Students

Shannon Price

Yale University, Law School, Students

John Fabian Witt

Yale University - Law School

Date Written: April 8, 2019

Abstract

A generation ago observers confidently predicted the death of contract and the triumph of tort. But contract has risen from the dead. Contracts waiving tort rights have become ubiquitous in the American marketplace. We survey the history and doctrine of exculpatory clauses in a wide variety of consumer contracts. We find that mid-twentieth-century skepticism about waivers has given way to a new age of increased waiver enforcement. The story of waiver enforcement, we conclude, is of a piece with the resurgence of free contract and market thinking in the 1980s and 1990s, a process we call “contract’s revenge.”

Keywords: waivers, exculpatory contracts, torts, personal injury, contract, consumer contracts

JEL Classification: K00, K13, K32, N32,

Suggested Citation

Martins, Ryan and Price, Shannon and Witt, John Fabian, Contract’s Revenge: The Waiver Society and the Death of Tort (April 8, 2019). Cardozo Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3367971

Ryan Martins

Yale University, Law School, Students ( email )

127 Wall Street
New Haven, CT 06511
United States

Shannon Price

Yale University, Law School, Students ( email )

127 Wall Street
New Haven, CT 06511
United States

John Fabian Witt (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-4944 (Phone)

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