May 30, 2006
Empirical Contract Scholarship
A lot of us write about contract law but few of us really understand how contract rules function in the Real World. We spend a lot of time writing about which rules are more efficient, or more fair, or what parties really expect, with very little in the way of hard data about actual practice or the effects of our doctrine.
Improving empirical scholarship in contract law was the theme of the Section's Annual Meeting this past January. A symposium issue on the topic is coming out in the Tulane Law Review, but you don't have to wait for the hard copy to read Section Past President David V. Snyder's introduction, Go Out and Look: The Challenge and Promise of Empirical Scholarship in Contract Law. Here's the abstract:
This introduction to the symposium on Empirical Scholarship in Contract Law, sponsored in January 2006 by the Contracts Section of the Association of American Law Schools and published in the Tulane Law Review, pushes for an increased focus on the real world and argues that highly quantitative statistical analyses of published judicial opinions are no more empirical than simple case notes. While this short essay argues for increased rigor in empirical research, it also recognizes the limits of scientific methods for legal analysis and suggests that the seduction of scientific appearances, now as in the days of Langdell's legal science, should be viewed with a mixture of hope and caution. Although it points out the limits of scientific aspiration in the law, the piece also applauds the role of empiricism in the field of contracts, and especially in bringing a more rigorous form of experience to both scholarship and teaching. Finally, the essay introduces the symposium papers: Stephen Choi and Mitu Gulati's study of disclosures in sovereign debt contracts; George Geis's computerized experiment using marketing data to assess the optimal precision of contract default rules; Stewart Macaulay's article on the new legal realism; and Debora Threedy's analysis and exposition of legal archaeology.
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