Doctrine as Empathetic Umpire

Testifying before the Senate committee reviewing his 2005 nomination as Chief Justice of the United States, John Roberts famously told those assembled that the job of being a justice is like being an umpire. The job is calling balls and strikes; not making rules up, just applying those already laid down. President Obama later rejected that analogy, when appointing both Sonia Sotomoyer and Elena Kagan to the Court, saying justices can’t be mere umpires.   They need to have empathy, he said.

Each of these viewpoints contains different partial truths; both emphatically demonstrate that personality plays a vital role in the docket of the Supreme Court. This underscores the political and ideological nature of the popular cases it grapples with. In that Court and in those disputes, political theory and hence ideology often prove pivotal. It’s easy to classify justices as liberal or conservative and the Court’s direction as toward the right or toward the left.

For less politically-freighted fields of law, or where the terrain is more reliably settled, it’s less accurate to speak of judges applying law in those terms—as being a mere umpire or needing empathy. Take contract law, where doctrine itself is a kind of organic empathetic umpire.

Sure, there have been epic battles in contract law over the past century plus, pitting titans like Samuel Williston (or Oliver Wendell Holmes) against Arthur Corbin (or Benjamin Cardozo). Many informed people discern hidden moral principles or economic rationales lurking within contract law. They legitimately debate whether some bargains should be valid and some complain that contract law advantages enterprises over individuals.

But the titanic fights in contract were not driven by ideology. All serious participants embrace freedom of contract, look for volitional assent, and orient remedies for breach to compensation. Traditional contract doctrine is multifaceted, as complex as life, not reducible to abstract models of moral or economic or political behavior. Ultimately, contract law mostly occupies a fair and sensible center, certainly compared to dominant prevailing public discourse today and much output of the Supreme Court .

True, in the hands of some judges, contract law can be bent into ideological shapes. Right wing judges can enforce patently unconscionable bargains and left wing judges can disturb exchanges they perceive to be made on lopsided terms.

But in the vast majority of disputes, contract doctrine tends to constrain such ideological extremism. Though courts must apply contract doctrine exercising judgment, contract doctrine itself serves as a kind of umpire. More than in most aspects of constitutional law at the US Supreme Court, contract law nationwide itself calls the balls and strikes, with just the right touch of empathy.

It’s a good thing the Supreme Court doesn’t hear many contracts cases. When it does, as in last term’s arbitration clause cases (Rent-A-Center and Stolt-Neilson) , you see the impurities of ideologies infecting contract law’s organic virtues.

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