SEATTLE UNIVERSITY LAW REVIEWVolume 21, No. 4SPRING 1998
A Casebook for All Seasons?-Another Casebook Review
E. Allan Farnsworth(fn*)
and W.F. Young(fn**)
We were glad to accept the editors' gracious invitation to respond to Professor Geoffrey R. Watson's review of our casebook.(fn1) Although tenure committees may denigrate the editing of casebooks as a lesser form of scholarship and the reviewing of such works as a minor variety of literary criticism, no less a person than Karl Llewellyn made an early mark with a casebook(fn2) and before that with reviews of the casebooks of others.(fn3) There is much to be said for casebook reviews. While many of the most widely reviewed books on law never see a second edition, it is a rare casebook that does not undergo successive revisions. And it would be a callous casebook editor who ignored a reviewer's thoughtful suggestions. Thus the reviewer of a casebook may hope to have an influence unlike that of most other reviewers, and the Seattle University Law Review may make a significant contribution to the improvement of casebooks and, indirectly, of American legal education.
The current edition of Farnsworth and Young is, as Professor Watson observed, the latest in a long succession of works produced by three authors in addition to ourselves: the late Edwin W. Patterson, George W. Goble, and Harry W. Jones.(fn4) It occurred to us to consider the change in milieu of our subject over our careers by making some comparisons between the current edition, published in 1995 (FY)(fn5) and the one published in 1957 by our three distinguished predecessors (PGJ).(fn6) Could one, today, teach a serviceable course in contracts out of the materials of forty years ago? We hope it will not be thought that our object in answering this question is to show that we are wiser than our teachers; their work instructs us still.
FY is shorter than PGJ (fewer than 1,000 pages as compared to nearly 1,200 pages(fn7)) and FY makes do with fewer cases than those in PGJ. One explanation is that in many schools, including ours, the contracts course has been compressed in length-from a six-credit course to a five- or four-credit course. Another explanation is that fresh perspectives, including those offered by the Uniform Commercial Code and by economic analysis, make it possible to elicit more analysis and reflection, while using less space.
A comparison of the organization of the two volumes is more indicative of the authors' ambition than is a page count. For a first point, we note our belief that FY is a more highly integrated treatment of the subject than PGJ. By "integrated" we mean that it makes connections, more frequently, between an immediate topic or case and what goes fore and aft; the ideal is, of course, to teach the subject in one blinding flash. Failing in that, FY is at least outfitted with notes that a topic (e.g. mistake, restitution) recurs in a number of contexts.(fn8) In this-as in many other respects-PGJ was a model for us; but the device is used more sparingly there. The plainest evidence of this is the attention paid in FY, early and late, to matters of remedy. We urge Professor Watson to rethink his practice of moving the opening section on remedies to the main chapter on remedies.(fn9) In contrast to FY, PGJ paid no attention to the calculation of damages until page 191,(fn10) and it appears that the editors' notes make virtually no reference to specific performance until page 589.(fn11)
This integration has been powerfully promoted by the notice now commonly given to the microeconomic merits of legal rules. How near, it may be asked, were the authors of PGJ to anticipating that, forty years ago? At the outset of its chapter on damages we find a series of excerpts dating from as early as 1873 and as late as 1931.(fn12) "I have no right," Austin wrote in 1873, "independently of the injunction [or other sanction]."(fn13) And Llewellyn wrote in 1931 of the "work of the law machine at the margin . . . probably the most vital single aspect of contract law."(fn14) But there is no mention of Adam Smith, not to mention transaction or opportunity costs as such. On the other hand, a note makes reference to Patterson's insight about small-job/large-job pricing;(fn15) another refers to his interpretation of Hadley v. Baxendale(fn16) as a factor in 19th-century productivity.(fn17) But it is an astonishing fact that this chapter (Chapter 6) makes no reference to Fuller and Perdue, who had published their "reliance" study thirty years earlier.(fn18)
In 1957 the editors were faced with something of the same problem that faced us in preparing FY. They had in hand a revised text of the Uniform Commercial Code, not yet enacted anywhere, on which Patterson's critique of the 1954 draft had a powerful influence. They paid little attention to the text. We were faced with a much-revised new text of Article 2. We supposed it to be in imminent danger of acceptance. They guessed wrong;(fn19) and so did we. Very likely there is a moral to be drawn from these misfortunes. We are not sure what it is, however, unless it is the admonition of our late colleague Walter Gellhorn, to keep in mind that many of our students will be practicing law forty years after completing our tutelage, when the complexion of the law will have changed in many ways.
Turning to the selection of cases, the discard rate is high: only one in eight cases has been carried over, through...
