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

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,