The forward’s writer to my edition wonders whether Grant Gilmore might have parodied the central criticism of the book: creating legal theory with oversimplified and fabricated legal history. To be sure, Gilmore presents, in Death of Contract, an approximately 100-years’ history of the law. And, his account of contract theory is tidy (the chapters are telling: Origins, Development, Decline and Fall, Conclusions and Speculations).
Gilmore’s history of contract law sets up, ultimately, his broader statement that the law reflects its socio-political environment. That, alone, is not spectacularly insightful. Gilmore couples the thought, though, with his observation that legal theoretical structure swings between classical and romantic trends–between, that is, tidy categorization (classical) and improvised chaos (romantic). In the law of “civil obligation,” Gilmore believes contract law was shaped into a classically organized theory beginning shortly after the Civil War, and then, after that order decayed, reached the height of romanticism in the late 1970s. The book ends with a predicted return to order. Gilmore, as I read him, did not appear dedicated to either. But before we tackle the substance of that debate, it is worthwhile to linger on Grant Gilmore’s account of legal history. And, as history requires characters to manifest a story, Contract is the protagonist in this tale.
A hundred years before Gilmore’s lectures, “classical” contract theory arose. That it arose irks Gilmore, and he dedicates the tone and asides in the first two lectures to emphasizing his disapproval. The first lines refer to Professor Langdell’s casebook on Contracts, published in 1871; the first casebook on the subject, and the beginning, according to Gilmore, of an unnecessary and damaging exercise in legal categorization. Oliver Wendell Holmes, Jr. and Samuel Williston carried, cleansed, and made absolute the theory of Contract with publications in 1881 and 1920, respectively. But, by 1950, Professor Corbin was dismantling the artificial edifice of Contracts theory.
Langdell, then, did little more than launch the idea that there was – or should be – such a thing as a general theory of contract. The theory itself was pieced together by his successors – notably Holmes, in broad philosophical outline, and Williston, in meticulous, although not always accurate, scholarly detail. At this point it is necessary to give some content to what we may call the Holmes-Williston construct – which I shall attempt to do impressionistically rather than scientifically. Having accomplished that chore, we can return to the far more interesting business of speculating on why Langdell’s idea, brilliantly reformulated by Holmes, had the fabulous success it did instead of going down the drain into oblivion as a hundred better ideas than Langdell’s do every day of the week.
Gilmore refers to the Langdell/Holmes/Williston line as “classical contract” theory, and I’ll do the same. What is classical contract theory, and why jurists create it? In his chapter, the “Origins,” of classical contract theory, Gilmore goes into the details of a few cases that were picked up in early Contracts treatises “because … the devious process by which the ‘cases’ became the ‘rules’ of the general theory of contract can be understood only microscopically.” Indeed, that transformation of “cases” to “rules” is crucial element to the artificial building up of contract theory.
(I’ll continue this post presently.)
