Intention in Tension

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

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

Intention In Tension.

Contracts, Cases and Doctrine. By Randy E. Bamett.(fn*) Boston, Massachusetts: Little, Brown and Company, 1995. Pp. xxxix, 1309

Reviewed by Kellye Y. Testy(fn*)

First having read the book of myths,

and loaded the camera,

and checked the edge of the knife-blade,

I put on

the body-armor of black rubber

the absurd flippers

the grave and awkward mask.

I am having to do this

not like Cousteau with his

assiduous team

aboard the sun-flooded schooner

but here alone.

- from Diving Into The Wreck, by Adrienne Rich(fn1)

I. Introduction

Just over four years ago, while I prepared to begin my first year of law teaching, one of many moments of panic struck. As I sat on the floor of my judge's chambers, surrounded by stacks of complimentary review copies of contracts casebooks, I was confounded: How was I to decide what casebook to use for my year-long contracts course? The casebook publishers had, of course, tried to make this seemingly overwhelming decision easier by identifying the distinguished law schools at which their books were being used. When I compared each publisher's list, however, I found more differences than overlaps. Admittedly, the lack of uniformity at these distinguished schools came as no surprise. Fresh out of law school, I expected those brilliant, unpredictable, and fiercely independent professors to make their own decisions after all. At my home institution, I was likewise awakened to the fact that different professors used different books. Thus, the idea of institutional solidarity provided no refuge either. To my dismay, I realized that I was going to have to decide on my own what book to use, with only the vaguest notion of the relevant criteria to employ.

To make a long-and what to me was a gut-wrenching-story short, I settled on what most would perceive to be a safe course. I selected a casebook that is probably the most widely used in the country, whose author also writes one of the most influential hornbooks, and which, more importantly, was currently being used by two other contracts professors at my home institution: Farnsworth's Cases and Materials on Contracts.(fn2) After three fairly pleasant and productive years with Farnsworth, however, I abandoned his book (with little fanfare and no gut-wrenching-but that's a story for another day)(fn3) for one of the newest entrants in the Contracts casebook market: Randy Barnett's, Contracts, Cases and Doctrine.(fn4) What could draw one from such a sure and safe course? What tantalizing material lies beneath the scarlet covers of Barnett's casebook? And, are there regrets and dissatisfaction that haunt this flight from a safe, well-trodden path to the new, crisp folds of a relative newcomer to the rough-and-tumble world of contracts casebooks? In the discussion that follows (names have not been changed; we are not innocents), I take on these questions and, in so doing, explore some of the strengths of Barnett's first edition, and suggest some improvements for the second.

II. A Note On Evaluative Standpoint

There are at least two obvious standpoints that come to mind when one sets out to evaluate a casebook, standpoints that to some degree mirror one of the oldest debates in contract law: objective versus subjective.(fn5) One could attempt to adopt an "objective" stance, looking to what the author says he intends to do (in the preface, introduction, and teacher's manual), and evaluating whether he has accomplished those goals. On this score, Barnett looks good, perhaps because he wisely refrains from making too many claims as to what the book accomplishes. The claims he does make-that he includes fewer, but more lightly edited, cases than is the norm;(fn6) that he favors "a mix of classic and very recent cases involving provocative controversies, memorable fact patterns, and public figures";(fn7) that he jettisons "vexatious note material" in favor of study guide questions and hornbook references;(fn8) and that he adheres to a "comprehensible and intuitive five part structure reflecting the cause of action for breach of contract"(fn9)-seem to be largely borne out by the text. That being said, however, I am tempted to ask what may be one of the most annoying questions a first year student hears: So what?

Although a purportedly objective stance may make sense in a standard book review, it rings particularly hollow when applied to a casebook. A casebook is written for a specific instrumental purpose: for professors to use when teaching courses by that, or a related, name. To divorce the book from its use fails to capture this dynamic process. Rather, it seems more useful to ask whether one can use the book to effectively achieve the pedagogical goals one seeks to accomplish. Granted, this more subjective evaluative standpoint somewhat decenters the book from its position of power and redistributes it to the professor and her teaching priorities and abilities, but in my view it more accurately captures the questions worth asking.

This is not to say that the author's claims as to what he seeks to accomplish are irrelevant. The author's claims may have been a driving force in making the professor believe that the casebook is one she can use as an effective tool in accomplishing her pedagogical goals. In that respect the claims may have a vital, originating role in creating the relationships that form the classroom community.(fn10) Rather, the author's claims are hollow in isolation. Not to put too fine a point on it too early, but if, just for instance, Barnett were to write a casebook to "prove" that a consent theory of contract "works," I may, nonetheless, use that very book as my primary tool in problematizing the concept of consent. Thus, the author's goal in writing his casebook may be accomplished by him in his classroom, or by another in her classroom, but my class is unlikely to walk away believing in a unified theory of consent in contract law.(fn11)

That being said, I press on.

III. Diving Into The Wreck(fn12)

There is a ladder.

The ladder is always there

hanging innocently

close to the side of the schooner.

We know what it is for,

we who have used it.

Otherwise

it's a piece of maritime floss

some sundry equipment.(fn13)

In discussing my choice of Barnett's casebook, I focus on two of my central pedagogical goals, and describe how Barnett's casebook has either helped or hindered my ability to accomplish those goals. Those goals are to actively assist students in (1) learning basic (accepted) contract doctrines and methods of analyzing contract issues; and (2) developing a critical stance toward law in general, and contract law in particular.

While the first goal is neither surprising nor complex, the second requires a bit more explanation. By "critical stance," I refer to my specific goal of assisting students in recognizing, understanding, and challenging the ways in which a person's class, race, sexuality, and gender affect (and are affected by) the law, as well as my more general goal of assisting students in learning to identify and to resist assertions of power, claims of naturalness, and the seduction of simplicity. I have found Barnett's casebook an excellent tool in accomplishing both of my pedagogical goals, in particular the goal of critical thinking, although perhaps not in the way Barnett might expect or like to hear.

A. Student-Centered and Learning Friendly

I want my students to learn basic contract doctrines and policies, legal reasoning, and argumentative skills. One could argue persuasively that this goal could be accomplished with any of the major casebooks on the market. While I agree that that is largely true, there are many overt features about Barnett's casebook's structure and content that are particularly student and learning friendly. And while the book does not have an explicit focus on lawyering skills, much of its structure and content create excellent springboards for encouraging students to think like lawyers rather than like students, which significantly enriches their understanding of basic contract doctrine.

Consistent with his claims,(fn14) Barnett manages to include many cases that involve provocative controversies, public figures, and memorable fact patterns. Such cases are fun to teach and certainly pique student interest. Many students, most of whom come from liberal arts backgrounds, often tell me that they expected to hate contracts because they anticipated reading about boring business situations. Starting the course with Baby M,(fn15) for instance, quickly dispels that notion. Immediately, students are swept into a case with which they may be somewhat familiar (increasing their confidence level), about which they have strong feelings (generating easy discussion so that students get practice speaking in class), and which is usually well outside of the sphere most would define as the ordinary business deal (encouraging students to ponder the appropriate scope of private agreement making in society). Once the pattern of interest, excitement, and care about contract law begins, it is infectious. And because Barnett intersperses the alluring cases with more factually routine, albeit doctrinally important ones, the enthusiasm for the subject...