Reflections on Barnett's Contracts, Cases and Doctrine
| Publication year | 1996 |
| Citation | Vol. 20 No. 02 |
Contracts, Cases and Doctrine. By Randy E. Barnett.(fn*) Boston, Massachusetts: Little, Brown and Company, 1995. Pp. xxxix, 1309
On my shelf, I count nineteen different casebooks covering contracts, not counting older editions or multiple versions of a book. The doctrines they introduce, primarily to first-year students, differ very little. The Uniform Commercial Code does not differ from text to text, though the extent the authors advert to it varies. The common law doctrines do not differ significantly, though the cases chosen to illustrate them vary, as does the extent of reliance on the Restatement (Second) of Contracts as a summary of those doctrines. Consideration and reliance, material breach and repudiation, duress and fraud, expectation, and reliance and restitution interests all emerge from every text. The subjects appear in different orders. The cases differ (sometimes). But on the whole, every book treats the same basic components of the law-components that have not changed much in the last ten years, no matter what the publishers of new editions may want us to think.
The wealth of available materials drives authors to distinguish their casebooks from the rest of the pack. Some books choose new formats, such as McKinnon's looseleaf approach(fn1) or the newly arrived electronic casebooks.(fn2) Some explore a particular theoretical approach to contract law, such as Scott and Leslie's focus on law and economics(fn3) and MacNeil's focus on a relational theory of contract law.(fn4) Some seek to organize the material differently, such as Dawson, Harvey and Henderson's innovation putting remedies at the beginning of the book,(fn5) an approach others now follow.(fn6)
In the quest for novelty, I fear that one vital component has received less emphasis than it deserves: pedagogy. I do not mean to imply that authors pay no attention to pedagogy. On the contrary, I suspect every author has some pedagogical purpose that motivates, at least in part, the creation of new materials. But often those pedagogical purposes misfire in execution. Among other problems, lack of training in education may undermine good intentions, pedagogical idiosyncrasies may emerge, other purposes may interfere with pedagogical goals, or collaborations (contemporaneous or posthumous) may produce mixed pedagogical messages. These difficulties do not destroy the substance of the contract law presented in the texts. But the materials chosen often do not facilitate teaching first-year students.
Randy Barnett's
I. Description
Barnett's casebook is longer than many: 1292 pages, excluding tables and indices, but including a short (eight page) introduction.(fn8) The length results, at least in part, from the inclusion of material other texts sometimes omit. Some of the material is optional. Agency and tortious interference with contract are not essential to understanding contract law, but they can be important additions if other courses no longer cover these topics. In other sections, Barnett offers an opportunity to explore a doctrine in more depth than other casebooks typically do. The choices of topics naturally reflect Barnett's interests: using injunctions to enforce personal service contracts (five cases, two case excerpts, forty-three pages total) and using intention to be legally bound to decide which contracts to enforce (Chapter Ten, seventy-five pages, in addition to references in three other chapters covering consideration and reliance). The topics themselves may not require coverage this extensive. But extensive materials draw students beneath the surface of these topics. In this way, the casebook helps professors reveal some of the complexity underlying judicial opinions. Barnett injects the same opportunities in other, less-extensively covered topics by giving students more of the opinion, an opinion following remand, excerpts from articles on the context of the dispute, or one more case than is common in other texts.(fn9) Barnett uses the additional pages to good purpose.
The organization is well considered, though not entirely conventional. The basic structure begins with remedies, then proceeds through assent, enforceability (consideration), performance and breach, and concludes with contract defenses. Barnett makes several interesting judgments in placing subjects within this framework. Public policy limits on the enforceability of promises appear in the introductory chapter, not the section on defenses. Interpretation appears in the section on assent, drawing parallels between the existence of an agreement and the meaning of the agreed terms. Multiparty contracts (third party beneficiaries, assignment, delegation, and agency) also appear in this section, rather than being tacked on at the end of the book. Barnett devotes extensive coverage (four chapters) to consideration, beginning with a chapter on the theoretical underpinnings, followed by more traditional chapters on consideration and reliance surrounding a chapter entitled "The Intention To Be Legally Bound." The chapters on performance and breach cover the traditional topics: good faith, warranties, prospective nonperformance, material breach and substantial performance. The chapters on defenses are divided into capacity, improper means (fraud, duress, undue influence, and unconscionability), and failure of basic assumptions (mistake...
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