Academic journal article
By Lipshaw, Jeffrey M.
Suffolk University Law Review , Vol. 45, No. 3
Charles Fried wrote Contract as Promise (1) because he objected to the idea--growing increasingly prevalent in the years preceding the book's publication--that something other than moral duty underlay the social institution through which the state intervenes to enforce, at the request of one private party, the promissory obligations of another private party. (2) Under one view, for example, contract law is a product of social development since the industrial Revolution, the means by which large, impersonal institutions--corporations, unions, governments--regulate their affairs. (3) According to another line of thought, contract law is merely a way of doing justice and imposing social policy on parties who have come, in one way or another, to interact with each other. (4) Professor Fried perceived a wholesale abandonment of the justification of contract law as a means by which the state affirms classically liberal individualism. or, as he put it, "[t]he validity of a moral, like that of a mathematical truth, does not depend on fashion or favor." (5) The book is an unapologetic paean to Enlightenment (and particularly Kantian) conceptions of the free and autonomous self, able to injure another not just by way of inducing detrimental reliance, but also by acts of individual will that create disappointed expectations and undermine trust in the recipient of a promise.
For most of the thirty years since its publication, Contract as Promise has carried the lion's share of the burden of deontological justification for contract law as against theories grounded essentially in consequentialism (the underlying moral basis of welfare economics) or sociology. This issue of the Suffolk University Law Review records a celebration of a man and his work that has stood the test of thirty years' time as theoretical explanation, normative assessment, and an essential lightning rod for thinkers whose philosophical inclinations may well not accord with Professor Fried's. On March 25, 2011, we gathered a stellar group of Professor Fried's friends, admirers, and critics (not mutually exclusive categories, by the way) to consider the impact of his arguments, the current state of contract theory, and the likely direction of future work in the field.
II. THE PRACTICAL RELEVANCE OF CONTRACT THEORY
In this introductory essay, I want to assess this intense exercise in contract theory less for the merits of any particular position as much as to address a current criticism of legal academia, most recently articulated by the Chief Justice of the United States, that what law professors spend their time theorizing about is not of much value to what real lawyers do in their professional lives. (6) As someone who practiced before entering the academy for twenty-six years as a litigator, transactional lawyer, and business executive in matters ranging from the mundane to the arcane to the global, and has since taught contracts and written about contract theory, I am fully aware of the tensions between pure thought and practical training in the idiosyncratic institution that presently constitutes the American legal academy. With all due respect to the Chief Justice, our job as educators is not merely to train doctrinal technicians, but also to groom what I will refer to as "lawyer-theorists." I want to suggest in this introductory essay that we need more theory of the kind contained in this issue, not less, or perhaps better put, more opportunities for thinking about theory in the way a reflective practitioner might conceive of it. (7) My theme is the relation of theory to practice, particularly in contract law, and why a theoretical orientation, broadly speaking and whether or not so conceived or not by the practitioner herself, is fundamental to that practitioner making good judgments.
Law students enter our classrooms and we teach them to think like lawyers. What that really means is that we ask them to set aside their pre-existing organizing principles and learn new ones. …