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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
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.
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.
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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