How We Got This Way: Further Thoughts on Fuller and Perdue

While Fuller and Perdue's distinction between the expectation, reliance, and restitution "interests" was an important advance for its time -- that is, for 1936 -- I have argued elsewhere that it is not a useful framework for analyzing current issues of contract theory. In the present paper, I speculate about some of the reasons why their framework has nevertheless continued to dominate so much of contracts teaching and scholarship. Setting aside simple inertia, I focus mainly on two possible explanations. First, Fuller and Perdue's framework may fit well with a (naive) "propertized" view of remedies, in which (a) every wrong is conceived as the taking of some kind of property, (b) the proper remedy is defined axiomatically to be the return of whatever property was taken, and (c) the property rights in question are defined in relatively simple terms. Second, Fuller and Perdue's framework may also fit well with a (naive) political view of remedies, in which (a) the expectation measure of damages is seen as conservative, individualistic, or free-market oriented; while (b) reliance damages are seen as progressive, collectivist, or communitarian. Although I do not regard either of these views as convincing, some version of them may help to explain the persistence of Fuller and Perdue's three-way classification.