The Influence of Law and Economics Scholarship on Contract Law: Impressions Twenty-Five Years Later

This is an update of a work done in conjunction with a contract law conference 25 years ago. My specific assignment was to assess the impact of law and economics scholarship on contract law. I responded by conducting an empirical study of judicial citations to selected law and economics works in order to ascertain the extent to which judges seemed to be relying on the teachings of law and economics. In effect, the effort was part of a general question that concerns all law professors: Does scholarship matter? I have repeated the study with respect to the scholarship sample selected twenty-five years ago. In addition, I have supplemented and expanded the sample of scholarship to include works appearing since the initial effort. The results of this project are the focus of this article. This examination suggests that law and economics scholarship has had two uses. First, it has provided a new rationale for many traditional contract rules. As one would expect this means it is most likely to be invoked when there are pressures to change the law. Second, although the quantity of citations remains modest, it is clear that law and economics scholarship, at least in the context of contract law, has affected the vocabulary and reasoning of courts