The History of Contract Law and Bibliographic Angst
My research assistant recently asked me if I could suggest a good book to read on the history of contract law. I had him for contracts last spring, I talk a fair amount about history in my class, and he’s interested (or at least is pretending to be to make me feel better). I found myself a bit tongue tied. Were he English, the answer to the question would be easy enough. Read P.S. Atiyah, The Rise and Fall of Freedom of Contract, A.W.B. Simpson, A History of the Common Law of Contract, or David Ibbetson, A Historical Introduction to the Law of Obligations. Indeed, given that the history of American contract law is in part at least the history of English contract law, I mentioned all of these books but then dismissed them. They aren’t really what he was looking for. He wants something a bit more recent and American with a bit less emphasis on the medieval writs and the seventeenth century revolution in assumpsit. So what to suggest?
I thought first of Grant Gilmore’s The Death of Contract. It’s fun, quick, well-written, and deals with many of the cases that we read in our contracts class. Perfect. The problem is that I can’t, in good conscience, recommend Gilmore as a historical introduction to American contract law. An important and provocative thesis about the substantive law: Yes. A responsible and accurate historical treatment: No. So where to go from there. I started thinking about general histories of American law. Friedman? Some good stuff on contract, but a bit long for curious end-of-the-summer reading. Horwitz? The first Transformation of American Law has a lot of stuff on contract. It is fascinating, well-written, and provocative. It’s central thesis, on the other hand, has been subject to some very powerful attacks. Am I comfortable saying that Horwitz represents “the” history of American contract law? No.
In the end I doubt that there is a “the history of American contract law,” which is of course my problem. He wants an introduction and a survey. And I find myself beset with pedagogical guilt about offering the highly opinionated as a rough approximation of history. There is no doubt some deep and by now platitudinous post-modern truth in there someplace. At a more pedestrian level, I am still not sure what to recommend, and I wonder if it is even possible to write the kind of book that I am looking for without being utterly boring and banal. At this point, I am going to tell him to: (1) Give up on finding a contract specific book; read a good book on American legal history that isn’t obsessed with con law and pay attention to what it says about contract;and, (2) make sure that you are always trying to pick a fight with the author; don’t take what they say lying down. At this point, I am leaning toward Kermit Hall’s The Magic Mirror. It will carry him far afield from contract law, but its a good read that isn’t trying to lead a revolution.