This paper reports on the state of contracts scholarship in the United States, utilizing two methods of approximating where scholarship has focused since 2007 and where it is headed in the future.
References
[1]
I surveyed the following law journals: WM. & MARY L. REV., MICH. L. REV., DUKE L.J., VA. L. REV., J. LEGAL STUD., LAW & SOC’Y REV., N.Y.U. L. REV., LAW & SOC. INQUIRY, NW. U. L. REV., TEX. L. REV., YALE L.J., CORNELL L. REV., HARV. L. REV., U. PA. L. REV., U. CHI. L. REV., COLUM. L. REV., VAND. L. REV., S. CAL. L. REV., CALIF. L. REV., STAN. L. REV. The class of journals I selected sought to represent journals that would conventionally be regarded as very good placements by most law professors in the US. I included law reviews whose articles are chosen by law students as well as peer-reviewed journals. The different article selection processes between student-edited reviews and peer-review journals—as well as the methodological orientations of the peer-review journals—probably creates various biases in the database of articles, which would help explain some of the findings reported here.
[2]
The method of populating the database obviously affects ultimate results. Articles primarily about corporate mergers, for example, may be classified as “contracts” for some purposes but would have been excluded from the database. Using the classification in the proprietary database and supplementing with common sense undoubtedly creates a risk of bias.
[3]
Carol Chomsky, the moderator of the listserv estimates that about 550 contracts scholars receive email from the list; that estimate suggests a 14% response rate to the survey. I did not collect any identifying information from my respondents. Because I wanted to maximize the response rate and maintain anonymity completely in this informal context, I kept the survey very short. A more elaborate methodology would have collected more information from respondents to learn more about how gender, age, and institutional affiliation can predict how one perceives the field. That is a direction for future research.
[4]
I asked two coders to categorize each of the 93 entries with only one methodology. When the coders agreed about the methodology that dominated an article’s inquiry, I accepted their assessment; when they disagreed, I used my personal judgment.
[5]
See generally Jay Feinman. “Relational Contract Theory in Context.” Northwestern University Law Review 94 (2000): 737.
[6]
See Ethan J. Leib. “Adding Legislation Courses to the First-Year Curriculum.” Journal of Legal Education 58 (2008): 166.
[7]
My respondents were generally unaware of contracts scholarship overseas (even the few who claimed to know something about contract law elsewhere had contradictory things to say about mostly European contracts scholarship). And in my sample of 93 articles, only 6 dealt with international themes. Maybe all law is local—as one of my respondents wrote—so it shouldn’t be concerning that there is very little transnational conversation among contracts scholars. But one is hard-pressed to believe that American contracts scholarship will be hermetically sealed off from foreign contract scholarship for too long. Thanks to the efforts of one new journal(!), we might see better cross-fertilization in the coming years.
