In Praise of Nominalism or Why I Will Confuse My Students Without Guilt Tomorrow

Coke.bmpTomorrow I will teach the first day of contracts. Last semester I began secured transactions with a discussion of contracts and Elizabethan drama, looking at their treatment in Marlowe and Shakespeare and posing the question of why contracts are generally regarded so poorly by these two authors. From there I went on to talk about the rise of commerce in the 16th century and the shift from a world where wealth was primarily about owning land to one where it was primarily about being owed money. Then we started talking about the problems of debt and launched into our first case. My goal was to provide some sense of context before launching into the initial discussion of lien priorities, as well as trying to persuade my students that commercial law is both important and interesting.

I am tempted to revisit Shylock and Doctor Faustus at the beginning of contracts. I could make many of the same points about the rise of commerce and the central importance of contracts in our economy and society. But I am not going to. Rather, we’re going to launch straight into the details of Lucy v. Zehmer. Partly this is simply because Lucy is a very fun case. (For the non-contracts geeks in the audience, Lucy v. Zehmer involves a contract to sell land. The defendant in the case denied that there was really a contract at all because he signed the writing as a joke and was “high as a Georgia pine” on booze at the time.) Partly it is because first year law students need to learn how to read cases critically, and ultimately there is no substitute in learning this skill (I think) to a good back-and-forth over the details of a particular opinion.

I am also teaching my first class this way, however, as my homage to the common law. At the end of the day, the common law embraces a kind of radical nominalism. What matters is the cases and their outcomes. Any theory that we have emerges only after the fact as a way of organizing the welter of particulars. Theories of the common law are always heuristic devices for orienting us rather than foundations from which we deduce results. There is a sense in which one cannot appreciate the power (and limits) of any theory of the common law until one has experienced the seeming chaos with which such a theory must cope. Hence, I plan on teaching theory — economics, autonomy, Fuller & Purdue, etc. — but only after students have confronted enough cases to appreciate the beauty and difficulty of such theories.

In this sense, I believe in the autonomy of the law. It is not that I think that law is a discipline or a methodology that yields “correct” results. Langdell was wrong, and the law is not a system of logic. I do, however, believe in the autonomy of law as presented by Edward Coke. When King James insisted that the law was the reflection of reason and the king’s reason was as good as any, Coke replied that the law was a reflection of reason, but it was an “artificial reason” that could only be acquired by hard study and long experience. I take this to mean that — at least for the common law — we ultimately understand how it works only by repeated immersion in the particulars. In this sense, law is an autonomous discipline the same way that riding a bike is an autonomous discipline. It is not a set of clearly stated assumptions and rules from which one deduces results. Rather it is a skill that one acquires by practice; trial and error. It is techne rather than episteme.

Hence, my students will get no introductory lecture to ease them into the subject tomorrow. Of course, it could be worse. Elizabeth Warren reputedly always begins the first day of her contracts class by asking some hapless 1L what an “assumpsit” is.

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2 Responses

  1. Susan Staker says:

    Don’t know much about law. But I agree that theory, extrapolation, needs a healthy dose of the specifics. Muck around in that until the details begin to stick in patterns of recurrence, revisiting (memory). That’s when thinking begins. Maybe cases are just stories. . . . .

  2. Anonymous Law Student says:

    How did Lucy v. Zehmer go over? I remember that case fondly from my 1L year, which was only last year. My contracts professor asked us, “What is a contract?” And then stared at us in stony silence. Finally some brave soul offered, “An agreement?” And that silly professor, naturally, socratically even, replied, “And what is an agreement?”

    Starting off really can be rough going. I bet Lucy went over better than our discussion did.