Article by Stewart Macaulay
In early January of 2005, the nuclear submarine SAN FRANCISCO was traveling submerged at a depth of more than 500 feet and running at top speed. It crashed into an undersea mountain, killing one sailor and injuring ninety-seven others. The United States Navy estimated that repairs to the boat might cost more than $88 million. The mountain had not been identified on any of the boat's navigational charts, although a potential hazard had been noted on other charts that the SAN FRANCISCO's officers had never seen. The submarine's captain and six others were relieved of duty.
Few will be surprised to discover that I, the coauthor of a casebook called Contracts: Law in Action, think that many of the charts of our subject are inaccurate and might send us crashing into unseen mountains. Furthermore, the tragedy is that many of these hazards have been “charted” in the work of scholars who write in the law and society tradition, but these charts are unknown to many in the contracts trade. Fortunately, our inaccurate charts are unlikely to kill or physically injure anyone. However, if legislatures, courts, or law students were to pay any attention to contracts scholarship, our reliance on inadequate navigational charts might cause some serious damage. For example, we may advocate particular contract rules because of what we think their likely consequences would be. The law in action or the living law might doom our proposed legal solution to having little or no impact, or our proposals might provoke unexpected and unwanted consequences if enacted or adopted.
What is this Article about? I will describe the navigational chart used by most contract scholars. I will ask, what is the assumed picture of the legal system? How could we fashion a better chart without everyone having to become an expert in field methods, research design, sampling, and state-of-the-art statistics? (Of course, I hope that some of those with this expert knowledge will contribute to our field, but I do not think that we can afford to wait for them to hand us what we need neatly gift-wrapped). What kinds of studies of contract law in action should we recognize in our work? What risks do we have to watch out for as we think about research taking a different focus? What needs to be done in the near future? At the outset, I must stress that this Article is not a review of the literature nor an attempt to award prizes for what I think is the best work. I will offer examples, but they are just that—examples that were at hand as I wrote this Article.
About the Author
Stewart Macaulay. Malcolm Pitman Sharp Hilldale Professor of the University of Wisconsin-Madison and Theodore W. Brazeau Professor of Law.
Citation
80 Tul. L. Rev. 1161 (2006)