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1985 Wis. L. Rev. 465 (1985)
An Empirical View of Contract

handle is hein.journals/wlr1985 and id is 479 raw text is: AN EMPIRICAL VIEW OF CONTRACT STEWART MACAULAY* Professor Stewart Macaulay reflects on his 1963 article Non-Contractual Relations in Business and assesses its current significance. Analysis of the gap between contract doctrine and the daily functioning of the business and commercial world has proven to be a fruitful source of theoretical insight into the social functions of law. While the teaching of doctrine remains a central element of legal education and even predominates, the theoretical potential of an empirical approach to legal education remains vast. I. INTRODUCTION When Grant Gilmore called his lectures The Death of Con- tract,1 he gave a name to a body of work that includes some of mine. He called me the Lord High Executioner of the Contract is Dead movement. However, Gilmore was not very interested in my empirical description of contract. He said this kind of work lacked theoretical relevance. I must credit him with an attention catching title. Neverthe- less, he failed to see that the very limited practical role of what profes- sors call contract law poses significant theoretical problems that we are only beginning to confront. In a way, Gilmore's title is misleading. Contract as a living institu- tion is very much with us. In the day-to-day flow of dealings, vast num- bers of significant transactions take place to the reasonable satisfaction of all concerned. People and organizations bargain, they write docu- ments, and they avoid, suppress, and resolve disputes little influenced by academic contract law. Some cases are taken to court and the formal process begun, although lawyers settle most of them before courts reach final decisions. There are even opinions by judges relying on traditional contract law, but they are relatively rare.2 * Malcolm Pitman Sharp Professor, University of Wisconsin-Madison. This paper was given on October 24, 1984 at the University of Amsterdam. I want to thank Professor Andr6 Hoekema for inviting me to speak and for being such a gracious host. A revised version was given on May 20, 1985 in Copenhagen. Professor Britt-Mari Blegvad arranged an enjoyable conference in her delightful city. Dr. Jacqueline Macaulay read the manuscript critically and, as always, made it much better. 1. G. GILMORE, THE DEATH OF CONTRACT (1974). 2. See Trubek, Sarat, Felstiner, Kritzer and Grossman, The Costs of Ordinary Litiga- tion, 31 UCLA L. Rav. 72, 87 (1983).

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