The History of Contract Law and Bibliographic Angst
posted by Nate Oman
My research assistant recently asked me if I could suggest a good book to read on the history of contract law. I had him for contracts last spring, I talk a fair amount about history in my class, and he’s interested (or at least is pretending to be to make me feel better). I found myself a bit tongue tied. Were he English, the answer to the question would be easy enough. Read P.S. Atiyah, The Rise and Fall of Freedom of Contract, A.W.B. Simpson, A History of the Common Law of Contract, or David Ibbetson, A Historical Introduction to the Law of Obligations. Indeed, given that the history of American contract law is in part at least the history of English contract law, I mentioned all of these books but then dismissed them. They aren’t really what he was looking for. He wants something a bit more recent and American with a bit less emphasis on the medieval writs and the seventeenth century revolution in assumpsit. So what to suggest?
I thought first of Grant Gilmore’s The Death of Contract. It’s fun, quick, well-written, and deals with many of the cases that we read in our contracts class. Perfect. The problem is that I can’t, in good conscience, recommend Gilmore as a historical introduction to American contract law. An important and provocative thesis about the substantive law: Yes. A responsible and accurate historical treatment: No. So where to go from there. I started thinking about general histories of American law. Friedman? Some good stuff on contract, but a bit long for curious end-of-the-summer reading. Horwitz? The first Transformation of American Law has a lot of stuff on contract. It is fascinating, well-written, and provocative. It’s central thesis, on the other hand, has been subject to some very powerful attacks. Am I comfortable saying that Horwitz represents “the” history of American contract law? No.
In the end I doubt that there is a “the history of American contract law,” which is of course my problem. He wants an introduction and a survey. And I find myself beset with pedagogical guilt about offering the highly opinionated as a rough approximation of history. There is no doubt some deep and by now platitudinous post-modern truth in there someplace. At a more pedestrian level, I am still not sure what to recommend, and I wonder if it is even possible to write the kind of book that I am looking for without being utterly boring and banal. At this point, I am going to tell him to: (1) Give up on finding a contract specific book; read a good book on American legal history that isn’t obsessed with con law and pay attention to what it says about contract;and, (2) make sure that you are always trying to pick a fight with the author; don’t take what they say lying down. At this point, I am leaning toward Kermit Hall’s The Magic Mirror. It will carry him far afield from contract law, but its a good read that isn’t trying to lead a revolution.
July 31, 2008 at 12:00 pm
Posted in: Contract Law & Beyond, History of Law, Law School (Teaching)
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Responses (7)
Patrick S. O'Donnell - July 31, 2008 at 1:09 pm
Any thoughts on Roy Kreitner’s Calculating Promises: The Emergence of American Contract Doctrine (2007)?
Patrick S. O'Donnell - July 31, 2008 at 1:09 pm
Any thoughts on Roy Kreitner’s Calculating Promises: The Emergence of American Contract Doctrine (2007)?
Alfred - July 31, 2008 at 1:18 pm
Nate,
Thanks for this. While you’re certainly correct that Horwitz has come under attack for the overall thesis of Transformation I (that judges employed an instrumental conception of the common law), it’s still well worth reading. I’d also hasten to add that I think Horwitz’ overall thesis is pretty nearly correct (that the common law incorporated considerations of utility). (As some evidence of this, look at the similarity between Hall’s treatment of the antebellum period in Magic Mirror and Horwitz’.) But _that’s_ a subject for another post.
You might supplement Horwitz with AWB Simpson’s response in the University of Chicago Law Review, 46 U of Chi L Rev 533 (1979). And your student might enjoy Roy Kreitner’s _Calculating Promises: The Emergence of Modern American Contracts Doctrine_. Though it’s not a comprehensive history of the development of contract, it’s a provocative work of intellectual history, located around the early twentieth century.
Nate Oman - July 31, 2008 at 1:24 pm
Al: I agree that Horwitz is well worth reading, and I ultimately suggested it (along with Kermit Hall) to my student this afternoon. I thought about Kreitner’s book as well. I really liked it, but I figured that its focus was a bit too narrow.
Nate Oman - July 31, 2008 at 1:32 pm
Incidentally, I would read Horwitz’s thesis as being a bit more specific, particularlly that common law judges sought to subsidize business interests by altering the rules of private law so as to benefit them at the expense of workers and property owners. Some of his arguments, it seems to me, are based on very strong, unstated, and questionable economic assumptions. For example, his condemnation of the early rise of the fellow servant rule implicitly assumes a glutted labor market in which workers’ reactions to increased costs in their default contract are extremely limited. This assumption about labor markets may have been true in Manchester in the mid 19th century, or perhaps of large urban areas in the United States later in the century. On the other hand, in the early and mid nineteenth century, America had a tight labor market (all that cheap land), which resulted in comparatively high wages and bargaining power for workers.
Still, I think it is a great book and well worth the effort of reading.
Alfred - July 31, 2008 at 3:03 pm
Very interesting discussion, Nate.
A lot of people, from perspectives as different as Willard Hurst and Richard Posner, have identified a preference among judges in the 19th century for rules that promote utility. (Whether they actually achieved those results is a different issue.) All of this is worthy of some serious discussion, of course — maybe here at co-op!
There are, of course, a lot of levels on which to read Horwitz’ _Transformation_. As to your specific critique of Horwitz’ treatment of the economic environment for the fellow servant rule, I think this statement is a little broad: “in the early and mid nineteenth century, America had a tight labor market (all that cheap land), which resulted in comparatively high wages and bargaining power for workers.” Some people in the Republican party around 1860 thought differently, to say nothing of people who worried about the declining economic fortunes in the south until the 1850s. It’s, of course, worth thinking about the economic and social context of antebellum jurisprudence.
ADL - July 31, 2008 at 5:08 pm
I think that the basic premise (that you can find an “objective” history of contract law) is erroneous. Every historical study is based on a meta-narrative. Horwitz’ narrative has been criticized and is perhaps more readily apparent to the average reader than some, but every other book on the history of anything has an equally powerful narrative that a critical reader needs to be aware of. Peter Novick’s book That Noble Dream: The “Objectivity Question” and the American Historical Profession (1988) provides an excellent study of the reasons for this (ultimately unrealizable) expectation.
History is full of contradictory narratives that can be harnessed by historians, who in order to write coherent books need to develop narratives. But it is important to remember that there is not one “history” – otherwise, what would the next generation of historians have to attack?
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