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Duquesne Law Review




Our thesis here is that contract law as a distinct, coherent, and important body of law—the law generated through the appellate decisions of American courts and taught in American law schools for nearly a century and a half—is dying. The last few decades have seen a steady erosion of its importance, and it functions today less as a tool that enables a rich vein of private ordering than as a series of arbitrary traps that lie in wait for the unwary. Because sophisticated commercial parties are always free to opt out of contract regimes they do not find helpful, much of the current law school contracts course, in our view, is likely to become almost entirely irrelevant to practicing lawyers and their clients. And in a world in which most law schools will face considerable pressure to adapt their curricula to meet the needs of the profession and the clients, it will become, for all practical purposes, dead.

Our argument rests upon general observations of the disconnections between the structure of contract law and the realities of modem commercial transactions. Most of these observations, we believe, are not controversial, although the conclusions we draw probably will be so. We begin with the insight that the processes and rules humans use to carry out commercial transactions and to resolve disputes over those transactions are technologies," or, more precisely, as we will call them here techniques, the materials and processes of problem-solving. Like other techniques, these processes are subject to becoming outdated by changes in the world that make them less effective. That legal rules of contract become "outdated" and must be revised in light of current needs was, in fact, a principal argument made by the Legal Realist contracts professor Karl Llewellyn, and is nearly a truism today. Thus, contract law has regularly been "updated," most notably by adoption of the Uniform Commercial Code in the 1960s. But, we argue, contract law's adaption over the last century and a half has been mostly tinkering with a basic offering, and so contract law has become less and less valuable to contracting parties themselves and less and less important to those (government actors, primarily) who would regulate those transactions.

The argument here will proceed in six steps. In Part I we explore in more detail the idea of law as technique. We then examine two interrelated strands of technique, the judicial structure for resolving disputes (Part II), and the body of legal rules that govern contract disputes (Part III). In Part IV we look at current contract law technique and ask, "What kind of world does this technique seem to assume exists, and for what kind of world does it seem appropriate?" Part V then examines how closely the world implied in current technique matches the world that actually exists today and that we will likely see in the future. We find that contract law as we think of it today corresponds very little with the actual world of today, and even less so with that of the future. Finally, Part VI looks at the body of contract law as taught in the standard law school course on the subject and explains why, in our view, most of it is doomed to practical irrelevance.

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Duquesne University School of Law

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