Thursday, September 07, 2006
Research Canons: Contracts
Our next subject matter for the research canons project is Contracts. (See here for a discussion of the research canons project.) Please comment on the books and articles that are essential to a new academic in the field. In addition, you might want to comment on what type of work is covered by "Contracts" -- is it a catch-all category?
I said this in the previous post, but I think it bears repeating: research canons may call to mind older, classic works that provide the foundation for today's research. However, new canons are also extremely useful -- these are the current works that are driving the debate in the field. In fact, new canons may be more useful to new academics, since they are less likely to have seen these in law school. It may make sense to differentiate between these in your comments.
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Putting aside my own work, which despite the adjectivization of my name, has not yet reached canonical status (at least outside the confines of my office):
Charles Fried, Promise as Contract.
Stewart Macauley, Non-Contractual Relations in Business: An Empirical Study.
Ayres & Gertner, Strategic Contractual Inefficiency and the Optimal Choice of Legal Rules.
Posner, Economic Analysis of Law.
Eggleston, et al, The Design and Interpretation of Contracts: Why Complexity Matters.
Robert Scott, A Theory of Self-Enforcing Contracts.
Schwartz and Scott, Contract Theory and the Limits of Contract Law.
There are also other articles I would put here by Avery Katz and Richard Craswell.
Posted by: Jeff Lipshaw | Sep 7, 2006 8:32:13 AM
Fuller & Purdue, The Reliance Interest (and perhaps Craswell, Against Fuller & Purdue)
Barnett, Consent Theory of Contract
Dan Markovits, Contract and Collaboration
Posted by: Ethan Leib | Sep 7, 2006 8:54:14 AM
Also Ian MacNeil's work on relational contracts (along with Macauley).
Williston's Harvard Law Review article from the 1950s in which he inveighs against proposed Article 2 of the UCC may not be canonical but it's a very human and kinda sad take on the passing of one era into another.
P.S. Atiyah, Promises, Morals, and Law.
Craswell, Contract Law, Default Rules and the Philosophy of Promising (the response to Fried).
Posted by: Jeff Lipshaw | Sep 7, 2006 9:13:15 AM
A student's opinion, for what it's worth-
1. Some additions to the list Jeff started:
Ian Macneil, "Contracts: Adjustment of Long-Term Economic Relations Under Classical, Neoclassical, and Relational Contract Law."
Williston, Samuel, "Freedom of Contract," Cornell Law Quarterly (1921).
2. For those interested in the economics of contracting:
Oliver Hart, Firms, Contracts and Financial Structure (1995).
Herbet Simon, "A Formal Theory of the Employment Relationship," Econometrica, July 1951.
Williamson, Oliver. 1979. "Transaction Cost Economics: The Governance of Contractual Relations." Journal of Law and Economics 22: 233-61.
3. Recent work, not yet canonical but on its way:
Lisa Bernstein, "Private Commercial Law in the Cotton Industry: Creating Cooperation Through Rules, Norms, and Institutions," 99 Mich. L. Rev. 1724 (2001).
Posted by: Matt Jennejohn | Sep 7, 2006 9:33:46 AM
Radin's "Market-Inalienability'' in the Harvard Law Review.
Posted by: Rich B. | Sep 7, 2006 10:23:15 AM
I think Lisa Bernstein's Journal of Legal Studies article on non-contractual norms in the diamond district in New York (mazal v'broche seals the deal) probably is canonical.
Posted by: Jeff Lipshaw | Sep 7, 2006 1:26:22 PM
Ron Gilson's 1984 YLJ article on Transaction Cost Engineering. It draws on Williamson, of course, but it's much more accessible and "law" oriented.
Posted by: Vic Fleischer | Sep 7, 2006 2:51:26 PM
I just posted a link on ContractsProf (http://lawprofessors.typepad.com/contractsprof_blog/)
so hopefully we'll have input from the readers there.
I would add Lon Fuller, Consideration and Form, 41 Colum. L. Rev. 799 (1941). Also, from the fem-crits, Mary Joe Frug, Re-Reading Contracts: A Feminist Analysis of a Contracts Casebook, 34 Am. U. L. Rev. 1065 (1985) and Clare Dalton, An Essay in the Deconstruction of Contract Doctrine, 94 Yale L. J. 997 (1985).
Posted by: Miriam Cherry | Sep 7, 2006 6:04:50 PM
This is a fabulous resource: http://aalscontracts.com/pages/25/index.htm
Posted by: Meredith R. Miller | Sep 7, 2006 10:24:46 PM
I would add the following:
Langdell, Selection of Cases on the Law of Contracts
A.W.B. Simpson, A History of the Common Law of Contract
Atiyah, The Rise and Fall of Freedom of Contract
Kronman, Contracts and Distributive Justice
Goetz & Scott, Enforcing Promises
Kennedy, From the Will Theory to the Principle of Private Autonomy
Kennedy, Form & Substance in Private Law Adjudication
Posted by: Jonathan Kang | Sep 8, 2006 4:11:34 AM
Atiyah, P.S. Essays on Contract. New York: Oxford University Press, 1986.
Barnett, Randy E. “A Consent Theory of Contract,” 86 Columbia Law Review 269 (1986).
Benson, Peter, ed. The Theory of Contract Law (Cambridge, UK: Cambridge University Press, 2001).
Collins, Hugh. Regulating Contracts. New York: Oxford University Press, 1999.
Gilmore, Grant. The Death of Contract. Columbus, OH: Ohio State University Press, 1974.
Kimel, Dori. From Promise to Contract: Towards a Liberal Theory of Contract. Oxford, UK: Hart, 2003.
Kraus, Jody S. “Philosophy of Contract Law,” in Jules Coleman and Scott Shapiro, eds. The Oxford Handbook of Jurisprudence and Philosophy of Law (New York: Oxford University Press, 2002), pp. 687-751.
Smith, Stephen A. Contract Theory. New York: Oxford University Press, 2004.
Posted by: Patrick S. O'Donnell | Oct 22, 2006 9:42:50 PM