An Agnostic's Bible

• Publication year: 1996
• Citation: Vol. 20 No. 02

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 20, No. 2WINTER 1997

An Agnostic's Bible

Contract and Related Obligation-. Theory, Doctrine, AND PRACTICE, 3d EDITION. By Robert S. Summers(fn*) and Robert A. Hillman.(fn**) St. Paul, Minnesota: West Publishing Company 1996. Pp. xlix, 1070.

Reviewed by Sidney W. DeLong(fn*)

Manufacturing and marketing the modern contracts casebook is a formidable enterprise. Contemporary authors must envy the nineteenth-century pioneers who had only to mine and collate enough unedited case reports to permit a student to deduce the pure Idea of Contract in Langdelian fashion.(fn1) The gradual establishment of a canon of cases permitted later authors to free-ride somewhat on their predecessors' research,(fn2) but it correspondingly increased the costs of product development and marketing. Offering largely the same collection of cases, new market entrants had to develop innovations such as note cases, "comments," "problems," and "materials" in order to achieve product differentiation.(fn3) Those novelties having themselves become standardized, today's author must define an even more specialized marketing niche by identifying some still unmet pedagogical need or slighted theoretical perspective that will be supplied by the new publication.(fn4) Yet a steady stream of excellent contracts casebooks continues to roll off the academic assembly lines.(fn5) One such work, less well known(fn6) than some of its competitors, is Contract and Related Obligation (CRO)(fn7) by Robert Summers and Robert Hillman. On the occasion of the publication of its third edition, this casebook deserves to be reintroduced(fn8) to the contracts teaching community.

A casebook's warranties appear in its preface.(fn9) In their Preface to the First Edition, the authors of CRO undertook to do the following: (1) acquaint the student with the lawyer's role in contractual relations; (2) stress the "private-made" character of much of what we call law; (3) expose students to many different theories about contract; (4) renew the waning practice of "dialectical" teaching by using largely unedited principal cases, and by eschewing summaries and textual notes; (5) reveal the many extra-legal sources of law, including moral, political, and economic reasoning; and (6) offer more general insights as to the nature of law and lawyering.(fn10) While I believe CRO largely succeeds in these aims, I will focus on its treatment of lawyering, and its presentation of theory and the nature of contract law.(fn11)

I. CRO's Lawyer-Centered Pedagogical approach

A. Emphasis on Lawyering

A major benefit to those of us who give a central place in the first year curriculum to legal professionalism is CRO's continuous emphasis on the "lawyer's role" in the contract process. This emphasis begins in CRO's opening description of the genesis of an appellate opinion. Using a well known case on punitive damages, White v. Benkowski,(fn12) CRO gives a narrative account of the parties' initial transaction, a copy of the written contract, a narrative of the events culminating in the breakdown of the relationship, copies of the initial pleadings and motions, a summary of some of the trial testimony, the special verdict form, the judge's ruling on a post-trial motion, the judgment, and finally, the appellate opinion.(fn13) This introduction highlights the involvement of lawyers throughout the contract process by describing and evaluating the services performed by the parties' counsel at each step in the dispute.(fn14)

Most other casebooks seem oblivious to the importance of a law student's early development of a self-image as a professional.(fn15) Instead, they seem to encourage the student to develop a self-image as, well, a student, i.e., an innocent inquirer, an earnest compiler and summarizer, an intellectual answerer of abstract questions, and a detached critic of practices and theories. By contrast, CRO's questions and problems repeatedly situate the first year law student in the role of an attorney whose client has a vital interest in the issue in question.

I believe that this shift in perspective is critical to the professional development of law students, and leads them to ask themselves a lawyer's questions: Would I advise my client to sue in these circumstances?(fn16) How would I draft a contract so as to achieve or avoid this result?(fn17) What course of action would I counsel my client to follow in light of this precedent?(fn18) How can I prove that element of the claim?(fn19) Is this settlement offer reasonable?(fn20) What additional information do I need to advise my client?(fn21) Is what I am thinking about doing ethical?(fn22)

Ironically, I suspect that those inclined to dismiss this as a trade school approach are the ones most likely to overlook the critical importance of such inquiries to the validity of more global or objective conclusions such as "What is the best rule for this situation?" or "How can contract law reach just results?" When a student is led to think like a lawyer whose clients want to achieve private ends rather than the public good, she is apt to make more sophisticated predictions of the likely consequences of well intended regulation or precedent. To wit, if all the seller must do to avoid a finding of unconscionability is to enlarge the font from six point type to fourteen point type and have the buyer initial the oppressive provision, the unconscionability precedent will have little effect on the collective well-being of improvident buyers.(fn23) An accurate understanding of legal practices is as essential to legal theory as vice is to versa.

B. Sequence of Topics

The fundamental unit of analysis used by CRO is the "general theory of obligation," which the authors define as "a recognized basis for imposing legal duties."(fn24) Before beginning its survey of theories of obligation, CRO briefly introduces the idea of remedies with the well-known case of Sullivan v. O'Connor.(fn25) Sullivan is followed by a quotation from a 1938 letter from Lon Fuller to Karl Llewellyn, concerning the influence of Fuller's seminal work, The Reliance Interest in Contract Damages.(fn26)To me it seems clear that no analysis of contract law can be realistic or adequate which does not recognize that there exists a hierarchy of contract interests, which may be sloganized by saying that they extend from restitution through the reliance interest to the expectation interest, with a number of little midstations, disturbing to elegantia juris, along the way. ... I consider the contribution made in my article on the reliance interest to lie, not in calling attention to the reliance interest itself, but in an analysis which breaks down the contract-no contract dichotomy, and substitutes an ascending scale of enforceability.(fn27)

The "ascending scale of enforceability" is illustrated by the ensuing comparative survey of seven theories of obligation (bargain contract with consideration,(fn28) promissory estoppel, unjust enrichment, promissory restitution,(fn29) tort liability arising from contractual relations, obligation arising solely from legal form (such as the seal), and obligation arising from statutory (Article 2) warranties).(fn30) The effect of this survey is to de-center bargain contract from its usually privileged position in a contracts course and to induce students to think of civil obligation as a general domain whose provinces include contract, tort, and property.

I find that this survey section of CRO "teaches" very well. The "compare and contrast" strategy of presenting several bases of civil obligation in succession encourages the student to identify the salient characteristics of each theory and to compare their underlying policies. This perspective is also eminently practical. Any experienced litigator knows that disputes arising from commercial transactions usually engender complaints with multiple counts, each casting the events into a differently-nuanced retelling, appealing to a different source of justice, seeking a remedy tailored to its own rationale. Students of CRO learn early on to look for alternative ways of analyzing transactions.

The comparison approach also yields another dividend, which can be expressed by the following metaphor. Imagine that the theories of obligation are arrayed along the vertical axis of a grid and the associated legal doctrines are arrayed along the horizontal axis. To determine whether a doctrine applied to a theory, one would trace a line across from a theory to its points of intersection with the doctrinal columns. Thus, the line representing the theory of bargain contract would intersect the columns representing the doctrine of the statute of frauds, the parol evidence rule and the foreseeability requirement in damages. CRO's comparison approach leads students to ask whether these columns might also intersect lines representing other theories of obligation, such as promissory estoppel or tort arising from contract. Sometimes this method locates a possible doctrinal application that has not yet been identified in the caselaw.(fn31) Does the mitigation doctrine apply to Section 90 claims? Does the contracts foreseeability rule apply to claims based on torts that arise from contracts? Does the statute of frauds apply to promises to pay for benefits already received? Does the mistake doctrine apply to Section 90...