This Article attempts to sketch a missing piece of the contract story-how much contract litigation there is, who brings it against whom, how the parties fare, how this has changed over time, and so forth. Contract doctrine is like the baseball rulebook. It tells you what the players are supposed to do and how the umpires are supposed to rule, but you can't envision the game by examining the rulebook alone. This Article makes no claim to offer a full account of the living practice of contract litigation, instead, it supplements the rulebook by presenting another ingredient from which we might construct such an account, a collection of box scores. These may help us to assess the effects of doctrine, to see what difference is made by contract rules and by procedure, or by styles or amounts of legal representation, etc. I confine myself here to summarizing the box scores and leave such assessment to those of you on the field, in the dugout, or in the press box. If I may extend the baseball analogy, this paper also ventures to look at least fleetingly at the coaches, scorekeepers, sportswriters, and fans to see how the activity of the those engaged in physical baseball is reflected in the activity of the mental-or should I say psychic-players. The present article is not the product of a massive research project, but is an example of a low cost bricolage strategy of trying to capture, refine, and juxtapose scattered data already in the public domain, extracting a focussed account from bodies of information gathered for other purposes. In some cases the sources are collections of raw data; in others they are sophisticated analyses. This compilation is only feasible by not being overly sensitive to the pitfalls of the former or the intricacies of the latter. Stewart Macaulay's famous 1963 article showed that among American manufacturers, contract enforcement by the courts was entwined with and overshadowed by reputational and other informal "non-contractual" controls. Resort to contract remedies was infrequent relative to the occasions in which they might be invoked. I A few years later Lawrence Friedman observed that as new bodies of law were developed to regulate specialized transactions, these transactions departed the contract arena, leaving contracts as "the law of leftovers." [T]he law of contract remained alive, not ... as the organic law of the state's economic system-a kind of constitution for business transactions-but as one among many. It was the system of rules applicable to marginal, novel, as yet unregulated, residual, and peripheral business, and quasibusiness transactions .... "Contract" stepped in where no other body of law and no agency of law other than the court was appropriate or available.2 In a series of lectures delivered in 1970 Grant Gilmore lamented "the Death of Contract," by which he referred to the demise of the "classical" contract theory of the late nineteenth and early twentieth centuries, a "self-contained and logically consistent [system] of rules and doctrine" distinct from tort.3 This body of doctrine was based on absolute liability within the confines of narrow and abstract formalities and led to restricted or limited recovery.4 Gilmore discerned contract and tort "gradually merging and becoming one" as contract was "reabsorbed into the mainstream of 'tort"'S and manifested "an explosion ofliability.,,6 So from quite different perspectives we get a picture of contract law diminished in its scope, distinctiveness and theoretical grandeur, as well as its invocation and impact in commercial settings. When we tum to quantitative evidence about contract litigation, we encounter some evidence that confirms this scenario of decline.
