Sunday, October 28, 2007

Cromwell Book Prize to Kreitner, Calculating Promises: The Emergence of Modern American Contract Doctrine

At the American Society for Legal History meeting, the Cromwell Book Prize for 2007 was awarded to Professor Roy Kreitner of Tel Aviv University, for Calculating Promises: The Emergence of Modern American Contract Doctrine (Stanford University Press, 2006). The Cromwell Book Prize is for a book in American legal history by a not-yet-tenured scholar. According to the prize committee:
Kreitner incisively analyzes the theories of leading contract scholars--J. B. Ames, W.R. Anson, J. H. Beale, A. L. Corbin, O. W.Holmes, C. C. Langdell, J. F. Pollock, and S. Williston--to argue for revising prevailing views that contract doctrines have evolved incrementally over centuries. During the closing decades of the nineteenth century, courts came under considerable pressure to fashion doctrines limiting the long-established system granting juries wide discretion. Kreitner finds that the eight scholars revolutionized theories about the rules governing contract agreement and enforcement within a wider cultural transformation in which individuals confronted the risks and opportunities of a new American industrial society. These scholars fashioned theories that within a century would be identified with the law and economics movement. Chapters "revisiting" gifts and promises,perceptions about insurance contracts and gambling conceived of as"speculations of contract," and the varied texts of "incomplete contract" reveal, in Kreitner's probing narrative, how established contract "metaphysics" gave way to the assumption that contracting parties were rational calculating persons. Thus, by the end of the century, "The assumption of calculation is encapsulated in the theory of consideration, which at once strips the past of meaning (past consideration is no consideration) and at the same time assumes equivalence while denying the law's capacity for examining consideration's adequacy (233)." Even so, Kreitner's book asks legal academics, practicing lawyers, and judges to deeply rethink their assumptions about the origins of American contract theory.