Academic journal article Washington Law Review

Contract Texts, Contract Teaching, Contract Law: Comment on Lawrence Cunningham, Contracts in the Real World

Academic journal article Washington Law Review

Contract Texts, Contract Teaching, Contract Law: Comment on Lawrence Cunningham, Contracts in the Real World

Article excerpt

Abstract: Lawrence Cunningham's Contracts in the Real World offers a good starting place for necessary conversations about how contract law should be taught, and, more generally, for when and how cases-in summary form or in longer excerpts-are useful in teaching the law. This Article tries to offer some reasons for thinking that their prevalence may reflect important truths about contract law in particular and law and legal education in general.

INTRODUCTION

Those of us who have been teaching law for a long time, and have been teaching contract law for a long time, are experts of a sort about teaching that subject. Just ask us-we'll tell you. We are also-most of us, anyway-complete amateurs. Few among us have done, for example, any empirical work about the relative benefits of different kinds of casebooks or different kinds of teaching styles. I belong to the general majority of law professors who can only offer armchair speculations. And like the general majority of law professors, I will not allow the lack of informed expertise to prevent me from expressing opinions-lots of them, and with unwarranted confidence.

In this article, I will use Lawrence Cunningham's wonderful book, Contracts in the Real World,1 as the starting point for some reflections on contract law textbooks, teaching contract law, and contract law itself. Part I considers what one might learn from a broad overview of contract law texts. Part II offers a brief defense of using more full judicial opinions (or at least substantial excerpts), rather than case summaries or simply lists of doctrinal rules, in teaching contract law. Part III offers some reflections on the advantages and disadvantages of using cases involving well-known persons and events in contract law texts.

I. CONTRACT TEXTS

In looking for texts on contract law, there are two major alternative categories. On one hand are the type of texts that have been used to teach contract law since contract law scholar and Harvard Law School Dean Christopher Columbus Langdell first put forward the basic theoretical and pedagogical idea over a century ago2: course-books that are basically case-books. Such texts are primarily lightly edited versions of reported judicial opinions, generally from appellate courts.3 Because of the influence of the American legal realists, who criticized the belief that legal reasoning could or should rely entirely on the analysis of cases, we now have some discussions of policy and theory interspersed with the cases.4 However, most of the pages in these course-books remain devoted to the texts of actual opinions.

On the other hand are treatises, where the text contains primarily declarations of the doctrinal rules.5 To a varying extent, a treatise may also contain quick summaries of some of the more important or instructive cases. Study aids6 tend to have the general structure of treatises, though on a smaller scale, focusing on declaring the rules, with occasional reference to case summaries.7

That summaries of cases-and predominantly reported appellate cases-still dominate teaching texts in contract law (and most other first-year law school courses) is itself an interesting story. The standard progress story of the history of American legal thought 8 is that the legal realists showed: (1) that formalist approaches to legal reasoning and judicial reasoning were unsustainable-based inevitably on bias and pre- judgment; (2) that legal reasoning was not really autonomous; and (3) that even if legal reasoning could be autonomous, it would be better if supplemented by policy, science, and other forms of wisdom from outside of law.

The legal realist critique left its mark on legal education, though how large an impact it had can reasonably be debated. Is it an important change or a trivial one that our texts are no longer subtitled "Cases on Contracts," but now are subtitled "Cases and Materials on Contracts"?9 As reflected in these texts, the vast majority of contract law courses go beyond mere close reading of the judicial opinions, adding some amount of economic analysis, contract theory, critical reflections, and whatever else might fit under the broad realist rubric of "policy. …

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