AALS Contracts Session
As ContractsProf Blog spotlighted here, today was the Contracts Section meeting at the AALS Conference. The theme was empirical studies in contract law. Section Chair David Snyder moderated a discussion of papers by: Mitu Gulati (presenting on disclosure and sovereign debt contracts); George Geis (presenting on the optimal specificity of default rules); Debora Threedy (presenting on “legal archaeology”, i.e., qualitative research on leading cases); and Stewart Macaulay.
Macaulay in particular provided a good perspective on the field, based on his long experience as one of the founders of the law and society movement. He noted the increasing prevalence of private dispute resolution for contractual disputes, and evidence (some presented today) of contracts’ lawyers lack of interest in the existence of, or changes in, governing default rules. The message of his talk – somewhat implicit – was that there would be surprisingly few economic consequences were contract law to pick itself up and disappear off of the face of the earth. That is, the hierarchical model of American legal education, which posits that judges (and professors?) generate law, lawyers interpret it, and clients follow it, bears little to no relationship to observed experience. Obviously, Macaulay said it better than I could, and certainly this isn’t a novel idea (he’s said it before, in many places and in many forms) but it was a good thing to be reminded of as I begin to get ready to teach the second semester of my contracts course.