Welcoming All 1Ls Across America!

Welcome all first-year law students to the wonderful world of law!  I teach Contracts at George Washington University (though I’m visiting at Fordham University this fall).  My students find it useful to begin our journey into that subject–which many find can be difficult–with a step back to look at the shape of the first-year law school curriculum.

It has not changed much in a century and does not vary widely among law schools today, from Cooley to Columbia.  I also try to be sure to connect the topics and examples appearing in today’s casesbooks (which have also not changed much over time and do not vary from school to school) to current topics in the news.  Students at other schools can share in these stories by obtaining a copy of my book, a fun supplement to the Contracts course,  Contracts in the Real World: Stories of Popular Contracts and Why They Matter.

Some thoughts about the shape of today’s 1L curriculum appear in the beginning of the book, including the following excerpt.  I summarize this for my students on our first day of class to give a sense of why today’s curriculum looks as it does and where contract law fits within it.

The curriculum dates to a legendary figure of nearly a century and a half ago.  In the 1870s, C. C. Langdell, as Dean of Harvard Law School, designed a simple way to organize the vast field of law still used to this day. He thought that underlying law’s complexity were a handful of basic ideas. Examining leading cases organized around these ideas would reveal law’s elements and rhythms.

Common law actions, meaning those courts resolve one by one, were of greatest interest to Langdell and dominate many 1L courses, including Contracts.  In the United States, following English traditions, common law is developed by state courts as disputes arise. Originally referring to law “common” to all citizens, today this system yields some variation among states, but general principles tend to prevail. Though the common law evolves as society and the economy change, judges draw on precedents when evaluating new cases—under the principle of stare decisis.

Langdell organized the welter of cases on numerous topics according to basic questions: how, what, and why. The question of how isolates the procedures private parties follow when resolving disputes using civil litigation. This is the practice of the lawsuit, arranged into the sub-field of study called civil procedure.

The question of what addresses the stakes in a lawsuit, pivoting around entitlement to property. This involves drawing the lines of ownership, and a whole 1L course explores ways we do so.  Most pertinent, the question of why investigates justifications courts give when requiring property to change hands.

The answer to “why” is because of a judgment that one party instead of another is entitled to a sum of money or other property. Dean Langdell identified two sources of these obligations. One arises from behavior required of all people living in a civil society, called the law of torts, epitomized by the idea of negligence. The other comes from self-imposed undertakings, usually by a promise or an agreement, called the law of contracts. These two fields, torts and contracts, define the scope of civil obligation that courts may enforce.

Civil obligation contrasts with criminal law. The substance of criminal law consists of invasions by a person of the rights of another or of the public (like treason) so serious to require public force (the police and district attorney), not just private remedy, to redress. Such public interests also appear in constitutional law, which sets basic rights of individuals, as against government, plus the powers of the states in relation to each other, and to the federal government.

Contract law asks the vital question: of all the promises made in the world, which should be recognized as enforceable in court? Equally important, it asks, among enforceable obligations, what remedy should be awarded upon breach? There are many promises contract law views as unenforceable. For example, contract law does not recognize social promises such as dinner dates as warranting enforcement, nor does it enforce most promises to make gifts.

Instead, contract law concentrates on bargained-for transactions—such as promises to borrow and lend money or rent a car or banquet hall. There are also bargains that are enforceable though a promise is not made. A customer who drops off suits at a dry cleaner owes the price for the service when performed, whether any promise was made or not. A doctor who treats an unconscious person prone in the street is entitled to recover the reasonable value of services rendered, though the patient obviously promised nothing.

The substance of contract law expresses a political philosophy. In a capitalist society, contracts and contract law are essential. Where people are free to own and exchange property, contracts and contract law establish ownership and facilitate commerce.

Freedom of contract” describes an approach of deference to private autonomy and individualism. It means courts have a limited, though crucial role: to decide whether contractual liability exists and order appropriate remedies for breach. Freedom of contract can be a wonderful way to unleash creative energies and expand productive capacity and well-being.

Yet this contractual freedom is neither unchecked nor unbridled. Government regulation provides some social control over individuals by curtailing licentious pursuits of self-interest. Governmental regulation aims to protect people from the unscrupulous who would take advantage of contract law’s freedom. “Freedom from contract” provides a way to limit such exploitation. This gives courts a broader role. They decide not only questions of liability and remedy, but police against objectionable bargains.

While there can be conflicts between private autonomy and state regulation, in contract law, there is remarkable harmony between the two: you can bargain for anything you want—almost. But that does not stop people from advocating that contract law should move towards the extremes.

Devotees of pure capitalism, on the right, campaign for uncompromising devotion to freedom of contract, and resist state regulation that limits individual autonomy or contractual possibilities in any way. Opponents of rampant capitalism, on the left, vigorously object to such rugged individualism, pushing for substantial social control, and stressing freedom from contract. They exhort judges to review bargains for fairness or impress standards of behavior on people even if they did not agree to accept them.

Contract law in the United States reflects neither extreme. U.S. citizens may be conservative or liberal, Republican or Democrat, even libertarian or socialist. But the country, as a whole, is none of those things and neither is its contract law. The country’s practices are capitalist and democratic, capacious notions stressing both entrepreneurship and responsibility. The nation’s contract law gives enormous but not unlimited space for freedom of contract.

Of course, contract law is dynamic, adapting as society and the economy change. And the philosophies of particular judges in individual cases affect their analysis and sometimes the resolution of a dispute. But contract law’s evolution and its application by particular judges has vacillated within stable, practical boundaries.

These boundaries are well-defined by two other titans in the law of contracts: Samuel Williston and Arthur Corbin.  I plan to introduce these men in a subsequent post.  Stay tuned (and/or check out my book, Contracts in the Real World: Stories of Popular Contracts and Why They Matter).

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