by Roy Kreitner. Palo Alto: Stanford University Press, 2007. 256pp. Cloth. $55.00. ISBN: 9780804753982.
Reviewed by Edward J. Balleisen, Department of History, Duke University. Email: eballeis [at] duke.edu.
Roy Kreitner, an Israeli legal scholar who pursued his post-secondary education primarily in the United States, has crafted a provocative reassessment of American legal discourse about contract. Rooted in the interpretive predispositions of Critical Legal Studies, Kreitner’s book mixes historical analysis and sustained engagement with contemporary legal theory, exploring what he terms “the metaphysics of contract” (p.226) – the way in which the often unacknowledged premises of modern legal thought confine interpretive options to legal scholars, lawyers, and judges alike.
Kreitner has written this monograph with an audience of legal academics mostly in mind, first and foremost contract specialists, but also legal historians who study doctrinal evolution and transformations in legal ideology. The book assumes substantial knowledge about the basic workings of the common law, the structure of legal thinking about contracts over the past century and a half, and the details of assorted contract doctrines. As a result, interested readers who are not already deeply familiar with the concept of promissory estoppel or the parole evidence rule should keep a copy of Black’s Law Dictionary close at hand. Political scientists and historians who nonetheless plunge into Kreitner’s lucid prose will encounter an intriguing argument about the relationship between often fairly abstruse controversies over contract law and broader understandings of modern individualism and economic culture.
For Kreitner, contemporary debates about contract law have almost universally presupposed a flawed historical narrative that has placed legal thinkers from both left and right in an unhelpful ideological straitjacket. That narrative, which he portrays as being communicated through almost all first-year contracts classes in the nation’s law schools, begins with two key assumptions: that contract law in the Anglo-American tradition has always been about enforcing promises between acquisitive economic actors seeking to further their pecuniary standing; and that the central analytical issues concerning contracts has always been identifying which promises deserve legal protection, and then specifying the most efficient means of enforcing those promises in the face of contractual breach. The dominant historical account further maintains that before the early twentieth century, courts provided very little paternalistic monitoring of contractual relationships, only seeking to prevent instances of outright fraud or extreme coercion. Finally, it argues that more substantial judicial policing of contractual obligations has only come with the emergence of the modern [*706] regulatory state, primarily through statutory reforms and the adoption of the Uniform Commercial Code.
This story about contract law, Kreitner insists, is riddled with misconceptions. Before the late nineteenth-century, contract law was not simply a terrain in which the state enforced private ordering by duly consenting, wealth-maximizing economic actors. Instead, the legal system imposed a varied array of standard obligations on those individuals who entered into any of several enduring status-inflected relationships, such as those between principals and agents, masters and servants, landlords and tenants, or bailors and bailees. The now dominant view of contract as limited to enforceable promises created in the course of commercial activity by autonomous economic actors who meet on a legal plane of equality, Kreitner shows, emerged only in the late nineteenth and early twentieth centuries. In the midst of that era’s rapid industrialization, scholars such as Christopher Langdell and Joseph Henry Beale fashioned the legal theories about contract that dovetailed with the then influential ethos of social Darwinism. Equally important, both before and after this reformulated legal theory of contract, and in advance of the twentieth-century statutory reforms that offered consumers new contractual protections, courts frequently regulated commercial behavior through the interpretation of contracts, often on the basis of inherently vague principles such as “intent” or “good faith.”
Kreitner develops his historical critique partly by considering fundamental shifts within canonical treatises on contract law. The much greater part of his analysis, however, proceeds by considering not the core doctrines of contract according to the now dominant paradigm, such as the nature and evidentiary basis of consideration, but rather three crucial issues that raise fundamental questions about contract’s conceptual boundaries. These include: the extent to which American courts enforced promises to extend gifts; the legal treatment of contracts involving wagers, such as the buying and selling of commodities futures and the assignment of life insurance policies; and the judicial response to incomplete contractual performance. Kreitner pays particularly close attention to developments in these areas between 1880 and 1920, the period he persuasively identifies as the crucible of the newer portrayals of contract law as centrally concerning intentional promises made in the course of business.
In each of these three doctrinal areas, Kreitner identifies thorny problems that bedeviled judges for decades, leading in many cases to substantial judicial regulation of contractual relationships, and in general to a thicket of conflicting precedents. Appellate courts frequently refused to give legal effect to promises of gifts by donors, even when those promises were accompanied by clear evidence of actual delivery of property, although they also regularly upheld such gifts. Judges similarly proved perfectly willing to void what they saw as “gambling” contracts as contrary to public policy, though again, the case reports contain plenty of cases that upheld futures trades or policy [*707] assignments as perfectly legitimate mechanisms of dealing with economic risk, with the latter cases becoming more common with time. And in instances where plaintiffs or defendants alleged injustice in the performance of an incomplete contract, the judiciary regularly stepped in to impose inevitably discretionary standards of reasonableness or “good faith” on the behavior of the parties.
The impetus for such judicial intervention sometimes reflected political ideology, as when judges explicitly condemned commodities speculation on the grounds that it violated religious precepts and threatened the values of hard work and productivity which underpinned the American economy. In many instances, judges framed such motivations in terms of a paternalistic concern for safeguarding the economic morality that sustained public confidence in capitalist markets. Thus in the realm of disputes over contractual performance, both large corporations and small business owners frequently were able to persuade courts to compel contractual obligations even though agreements did not cover particular contingencies, such as partial completion of a construction project, or a clear standard of adequate provision by a public utility. In such cases, judges readily articulated a desire to protect the marketplace from “opportunistic behavior or sharp dealing” (p.215).
Kreitner’s evidence further indicates that assumptions about social status could powerfully shape judicial inclinations to interfere with or otherwise regulate contractual arrangements, belying the pervasive assumption among legal scholars that modern American judges ignored such considerations as they sought to vindicate freedom of contract. The recipients of deathbed gifts, for example, seem to have been far more likely to keep them in the face of legal challenges from disgruntled heirs if they fit societal expectations of propriety – if the gift, in the words of one late nineteenth-century New York appellate judge, was a “natural and reasonable one” (p.65), between individuals whose position, relationship, and behavior accorded with prevailing social norms. African-American or immigrant donees apparently were much more likely to face antagonistic judicial rulings than native-born, middle-class whites, usually through especially strict evaluations of the evidentiary requirements to demonstrate “delivery” of the gift, even when recipients could show that a bequest followed years of dutiful service or friendship. Similarly, “reputable brokers” were much more likely to have courts uphold future contracts than were brokers with less social standing, such as immigrant Jews. In short, despite all of the insistence by legal scholars that American law had forsaken the vestiges of “status” and embraced the capitalist logic of individualistic covenant, implicit assumptions about social hierarchies continued to shape judicial treatment of contract. The right kind of litigant, whose behavior fit comfortably into middle class categories of propriety, stood a much better chance of having an overwhelmingly white, conservative, native-born judiciary confirm a gift, or view a policy assignment as having been made in good faith. Kreitner does not quite frame his assessment of judicial [*708] decision-making this way, but his evidence fits this explanatory model developed by Lawrence Friedman, most explicitly in his AMERICAN LAW IN THE TWENTIETH CENTURY (2002).
Kreitner could have developed these points more effectively if he had systematically analyzed the geographic distribution of his cases and the socio-economic and racial/ethnic backgrounds of the litigants in those controversies. One gets the sense, for example, that the judicial inclination to regulate contractual behavior was greatest in areas of the country most prone to economic populism and animus toward non-whites and immigrants from Eastern and Southern Europe, though one would need at least some rough quantitative analysis of his full set of data to be more confident about that inference. A further absolutely central question concerns the outcome of contract-related disagreements at the bottom of the dispute pyramid, either at the level of trial courts or through out-of-court negotiations between interested parties. Kreitner might also have noted the parallels between his central historical claims and the interpretations offered by Friedman in his 1965 monograph, CONTRACT LAW IN AMERICA, which tells in many ways an analogous story about decision-making by appellate courts. Nonetheless, the book amply establishes that contract case law has long been chock full of exceptions to the dominant historical narrative offered by the legal academy.
As much as Kreitner wishes to demonstrate the extent to which “the case law is richer than the theory” (p.3), he puts even greater emphasis on what he sees as the cultural and ideological consequences of that dominant theoretical and historical narrative about contract. This narrative, he argues, has become, in the parlance of contemporary social theory, “naturalized” – it has at once encapsulated and generated a profound set of assumptions about how the world works, impoverishing ongoing debate about the appropriate role of the state in overseeing economic relationships. The view of contract as enforceable promises between formally equal, autonomous, and coldly rational commercial actors, he insists, has buttressed the modern conception of individualism, which views humans centrally as “calculating” and “calcuable” (p.225). In similar fashion, that view contributed greatly to prevailing understandings of the “market” as constituted most importantly through private ordering by such acquisitive, individualistic protagonists.
At the same time, Kreitner maintains, the judicial distinction between illicit gambling and commendable efforts to guard against foreseeable risks, however unevenly applied, helped Americans around the turn of the twentieth century “come to terms with the fears and uncertainties that accompanied the transition into modernity” (p.11). Judicial blasts at gambling that only masqueraded as risk management gave sanctioned efforts at speculation or hedging a more respectable patina. And judicial explanations of legitimate economic strategies for taming risk allowed “people . . . to envision themselves, or at least recognize themselves, as (interchangeable) parts [*709] [in an overall economic] system, subject to its (economic) laws” (p.125). In other words, developments in contract law “helped Americans [to] stop worrying and learn to love risk” (p.159).
One can imagine “weak” and “strong” versions of this complicated, overarching argument. The former would stress the impact of legal thinking about contract on the worldviews of most legal academics, judges, and lawyers. The latter would extend that impact to the worldviews of American elites more generally, or even the broader society. At various junctures, Kreitner makes clear that he wishes to put forward the relatively strong version, that he views the premises of legal theory as “govern[ing] the way Americans think about contract even today” (p.228). Toward this end, he explicitly draws on legal historian Robert Gordon’s concept of law as often constitutive of social reality, suggesting that “lawyers’ main importance derives from the their contribution to the forms and categories of public discourse” (p.158). In essence, Kreitner implies that contract doctrine has powerfully helped to shape the ideological frameworks that allow ordinary Americans make sense of their world, including, most importantly, their sense that economic individualism still characterizes the workings of the American economy, and their instinct that governmental regulation of private contractual arrangements represents not only a problematic crimping of economic freedom, but also a threat to long-term productivity and efficiency.
Kreitner’s data, however, almost never extends beyond the confines of “the law box,” as Robert Gordon (1975) has separately described the institutional and ideological realm of the legal fraternity. CALCULATING PROMISES is on its most solid ground when it suggests that within that realm, the prevailing legal theory about contract has constrained the consideration of conceptual possibilities, perhaps even with hegemonic implications. By fixating on issues related to the formation of contracts, Kreitner observes, legal scholars from both left and right have missed the opportunity to think through difficult issues concerning societal interests in shaping the content of contractual terms and performance.
The book, however, offers essentially no evidence about how Americans beyond the courtroom or law school have viewed such questions as the nature of individualism or the appropriate role of government in validating or overseeing contractual relationships. Nor does Kreitner furnish any indication of how the viewpoints of legal theorists ostensibly diffused into wider currents of cultural and political discourse. The monograph is similarly silent on the question of how such diffusion, to the extent that it existed, would compare in influence to other likely sources of prevailing ideas about economic individualism and the appropriate regulatory role of the state, such as the teaching of introductory economics in colleges and universities, or the political discourse of twentieth-century conservatism, or the popular literature on business management. [*710]
Indeed, Kreitner’s own discussion of appellate case law suggests that we should be wary about such diffusion from legal sources to the broader public. As he readily concedes, since the 1870s, a great many Americans have displayed understandings of contractual obligations and property rights that markedly diverge from the emerging and eventually dominant depiction of contract as enforceable promises, rooted exclusively in the consent of autonomous individuals, and sealed by unambiguous evidence of financial consideration, however great or small. Throughout the country, would-be gift givers who confronted the possibility or likelihood of death continued to assume that they could provide for the contingent transfer of their assets to whomever they saw fit, through relatively informal mechanisms – an assumption that invited and often prompted legal challenge. By the same token, the makers of all sorts of commercial contracts, including both small business-owners and large corporations, neglected to spell out contractual terms for handling a variety of contingencies in contractual performance, and then looked to the courts to protect their interests when those contingencies occurred. The assumptions and perspectives that law professors confidently articulated in their first-year contracts courses did not necessarily percolate through to the masses, or even the members of the business community. As Kreitner himself eventually observes, for all the “extensive academic and judicial energies” devoted to clarifying the legal framework of contract, “the results do not seem to affect the behavior of contracting parties” (p.224).
If Kreitner’s suggested chain of cultural diffusion from “law” to “society” occurred anywhere, one might expect that would have been within the burgeoning realm of American big business. As he notes, if any contracting entity actually approaches the “model of contractual man” and its associated “calculating attitude” (p.233) presupposed by prevailing American legal theory, it is the large-scale corporation. From their inception, corporations have employed high-priced lawyers who kept close tabs on legal developments, and who wielded considerable influence over those developments, as well as the internal culture of their firms. Within the last two generations, moreover, one can point to numerous contexts in which corporate behavior closely accords with these assumptions about economic calculation – not least in the domains of labor and consumer relations. And yet, the work of sociologically inclined legal scholars such as Stewart McCaulay (1963) and Russell Weintraub (1992) suggests the need for caution in drawing such conclusions. Their research indicates that business arrangements within particular American supply chains have often maintained an informal character at odds with Kreitner’s expectations, reflecting personal relationships forged between sales and purchasing managers. Especially in contexts in which firms have enjoyed and anticipate long-term relationships, commercial custom has emphasized flexible adjustments in the face of shifting economic circumstances, [*711] rather than efforts to compel strict enforcement of contractual terms through the legal system.
In the end, CALCULATING PROMISES constitutes an incomplete performance of truly ambitious scholarly undertakings, contributing a great deal to our historical understanding of American contract law, but not quite as much as this fine book pledges to deliver. Kreitner incisively reconceptualizes broad areas of contract case law; he persuasively argues that prevailing legal ideas about contract were much more a revolutionary creation of late nineteenth-century legal scholars responding to the dynamics of industrialization than they were a more careful working out of ancient common law principles; he establishes that the case law at no point conformed neatly to the generalizations and over-arching pronouncements of preeminent contract scholars. As a result, the monograph effectively challenges the confident pieties structuring so much contemporary legal discourse about contracts, especially in the nation’s law schools and law reviews. Kreitner’s characterization of the most far-reaching cultural and political ramifications of American contract theory, however, represents more of an enticing hypothesis than a demonstrated argument.
Of course, therein lies a host of potentially exciting research agendas, most of which would require more sustained consideration of developments outside “the law box.” How might we track and explain the shifting contours of popular legal consciousness, especially concerning the uses and limits of contract, or the most sensible ways of conceptualizing “the market?” Have “economies of gift exchange” played a bigger role within modern commercial culture than legal theorists or anthropologists have recognized – as in mutualistic extensions of credit or the sharing of investment and contracting opportunities? To what extent have the evolving organizational cultures of the American corporation or of the country’s small businesses actually imbibed the legal community’s dominant theory of contractual obligations, and its associated view of economic rationality? How, if at all, has the increasing salience of contractual relationships across international borders complicated contractual behavior and more abstract legal theorizing? And should we view the now prevalent theory of contractual obligations as more cause or effect? In other words, was the classical view of contract primarily the producer of widely shared notions of “common sense,” as Kreitner insists, perhaps through indirect influence on the worldview of the legion of American politicians trained in law schools? Or was that theory rather itself the product of wider currents of thought outside the law?
Most importantly, at least for Kreitner, and probably for his primary intended audience, how might today’s legal scholars and political theorists think more productively about the world of contract, working through the appropriate role of courts in foreclosing some contractual options, or imposing some general contractual obligations, in either case on the basis of enduring societal values and commitments? [*712] Despite the limitations of CALCULATING PROMISES, then, Roy Kreitner has raised some absolutely central questions about the relationship between law and modern American capitalism, inviting a wide range of additional inquiries across the social sciences.
Friedman, Lawrence M. 2002. AMERICAN LAW IN THE TWENTIETH CENTURY. New Haven: Yale University Press.
Friedman, Lawrence M. 1965. CONTRACT LAW IN AMERICA. Madison: University of Wisconsin Press.
Gordon, Robert W. 1975. “Introduction: J. Willard Hurst and the Common Law Tradition in American Legal Historiography.” 10 LAW AND SOCIETY REVIEW 9-55.
McCaulay, Stewart. 1963. “Non-Contractual Relations in Business: A Preliminary Study.” 28 AMERICAN SOCIOLOGICAL REVIEW 55-67.
Weintraub, Russell J. 1992. “A Survey of Contract Practice and Policy.” 1992 WISCONSIN LAW REVIEW 1-60.
© Copyright 2007 by the author, Edward J. Balleisen.