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30 UCLA L. Rev. 829 (1982-1983)
Critical Approaches to Contract Law

handle is hein.journals/uclalr30 and id is 851 raw text is: ESSAY CRITICAL APPROACHES TO CONTRACT LAW* Jay M. Feinmant This Essay analyzes modem contract lawI from the perspec- tive of critical legal studies. The topic and time are appropriate. Contract law furnished the ground on which the most elegant edi- fice of classical legal thought was erected and on which the realists who attacked that edifice fought their greatest battle.2 It is now a focal point for members of the critical legal studies movement challenging the dominant patterns of American legal thought.3 This Essay reflects the predominant strains of inquiry in criti- cal legal studies. Part I examines contract law as an intellectual * © 1983, Jay M. Feinman f Associate Professor, Rutgers University School of Law, Camden. This is an expanded version of a lecture presented at the Sixth Annual Conference on Critical Legal Studies on March 20, 1982, in Cambridge, Massachusetts. This Essay is my individual product, but it was essentially a collective effort. My primary debt is to my colleagues in the critical legal studies movement who advanced my understanding of contract law; many of them are cited in the footnotes. Roger Dennis, Marc Feldman, Wythe Holt, Duncan Kennedy, and Allan Stein made especially helpful comments on earlier drafts. Deborah Sampieri contributed greatly to the improvement of the Es- say. None of those who helped bears responsibility for my exposition; all of them have my thanks. 1. By modem contract law I refer to the body of law and legal scholarship dominant roughly since the first widespread adoption of the Uniform Commercial Code in the early 1960s. Perhaps the best exemplar of this work is the Restatement (Second) of Contracts, begun in 1962 and published in 1981. I exclude from this definition the work of more contemporary thinkers, such as Ian Macneil and Charles Fried, whose impact has not been greatly felt in the courts or in the mainstream of contract scholarship; I expect to treat such contemporary scholars in a subsequent work. 2. See generaly G. GILMORE, THE DEATH OF CONTRACT (1974). 3. On the critical legal studies movement, see Gordon, New Developments in Legal Theory, in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE 281 (D. Kairys ed. 1982) [hereinafter cited as THE POLITICS OF LAW]; Unger, The Critical Legal Stud- ies Movement, 96 HARV. L. REV. 563 (1983); Note, 'Round and 'Round the Bramble Bush.: From Legal Realism to Critical Legal Studies, 95 HARV. L. REV. 1669 (1982).