Wednesday, April 26, 2017

Schmidt Revisits Maine's "Modern Law"

Katharina Isabel Schmidt, a graduate student at Princeton and Yale, has posted Henry Maine's “Modern Law”: From Status to Contract and Back Again? which is forthcoming in the American Journal of Comparative Law:
In this Article, I conduct a long overdue assessment of Henry Maine’s “from Status to Contract” thesis in light of two essentially modern phenomena: contract standardization and relational contracting. Drawing on comparative legal history, classical sociological and anthropological literature, contemporary contract law theory, and recent works in the field of (behavioral) law and economics, I discuss the claim that modern private law is witnessing a reverse movement “from Contract to Status.” I show that this claim is historically inaccurate and conceptually simplistic in that it attributes shades of meaning to status that Maine never contemplated. I dedicate the remainder of the Article to exploring why—in the face of clear countervailing evidence—modern private law scholars continue to engage in Mainean “status”-speak. For this purpose, I tease out several interesting parallels between status as part of Maine’s theory and “status” as part of modern private law discourse.

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