The Rise and Fall of Promissory Estoppel or Is Promissory Estoppel Really as Unsuccessful as Scholars Say It Is: A New Look at the Data

This article makes important contributions to the field of empirical promissory estoppel scholarship. First it challenges recent empirical scholarship (by Professors Robert Hillman and Sidney De Long in the 1998 and 1997 Columbia and Wisconsin law reviews). Their scholarship had challenged the view of the vast majority of American Contracts scholarship by proclaiming promissory estoppel to be an unimportant doctrine based on low win rates of tried cases. My article challenges this new orthodoxy based on a comprehensive five year survey of cases. It concludes that it is too soon to announce the death of promissory estoppel and that promissory estoppel is still a vital theory in contract. It argues that if qualitative factors relating to the weakness of a claim are accounted for in the data the win rates are significant. Second, it argues that if such qualitative factors are recognized, promissory estoppel results can be rationalized in efficiency terms. Plaintiffs tend to win claims when a positive result would enhance an efficient outcome and to lose cases in which enforcement would have negative welfare effects. Finally, the Article offers some insights into conducting empirical scholarship. It argues that it may not be possible to draw meaningful conclusions from generalized win/loss ratios without making qualitative judgments about the viability of the underlying claim