I Want a Court of My Own
At times I envy professors who get to teach courses with courts. It may seem an odd complaint from a law professor. After all, I teach contracts — one of the last bastions of the more-or-less pure common law in our curriculum — and commercial law, which while structured by the code has plenty of cases. Neither of these subjects, however, has its own court that one can track, gossip about, and teach from.
For example, those teaching federal subjects ultimately have the U.S. Supreme Court. This allows them to follow the development of precedent over time, introduce students to a more or less stable cast of judicial characters, and even provides them with “big” cases pending before the Court to talk about. Biz orgs profs get to play a similar game with the Delaware Chancery and Supreme Courts.
Contracts, by contrast, occurs everywhere and nowhere. It doesn’t really make sense to track, say, the Virginia Supreme Court when teaching the subject. To be sure, we end up having a cast of judicial characters — Holmes, Cardozo, Traynor, Posner, etc. — but it is much harder to teach and study the subject against a single institutional background. (English contracts scholars are in some sense better off. They can just watch the House of Lords.) There is a real pedagogical advantage, I think, to a subject that operates within a unitary court system, or at least has a dominant court. It certainly makes it easier to illustrate how precedent shifts over time and from case to case.
Hence, odd as it sounds, I have court envy.