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From Langdell To Law And Economics: Two Conceptions Of Stare Decisis In Contract Law And Theory, Jody S. Kraus Jan 2008

From Langdell To Law And Economics: Two Conceptions Of Stare Decisis In Contract Law And Theory, Jody S. Kraus

Faculty Scholarship

In his classic monograph, The Death of Contract, Grant Gilmore argued that Christopher Columbus Langdell, Oliver Wendell Holmes, and Samuel Williston trumped up the legal credentials for their classical bargain theory of contract law. Gilmore's analysis has been subjected to extensive criticism, but its specific, sustained, and fundamental charge that the bargain theory was based on a fraudulent misrepresentation of precedential authority has never been questioned. In this Essay, I argue that Gilmore's case against the classical theorists rests on the suppressed premise that the precedential authority of cases resides in the express judicial reasoning used to decide them. In …