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Monday, October 22, 2012

Ronald K.L. Collins on Cunningham: Contracts in the Real World – At Last, a Book for Modern Minds

The following post is cross-posted from an online symposium that previously appeared on Concurring Opnions.  The original post can be found here.

Ronald K.L. Collins is the Harold S. Shefelman scholar at the University of Washington School of Law.  His next book, Nuanced Absolutism: Floyd Abrams and the First Amendment, comes out this January followed in March by Mania: The Story of the Outraged and Outrageous Lives that Launched a Cultural Revolution (with David Skover). In 1995 he edited and provided commentary for the second edition of Grant Gilmore’s The Death of Contract.  By way of full disclosure, Professor Collins was one of the internal reviewers for Cambridge University Press when Contracts in the Real World was under publication consideration.  

Collins2-150x150In a world where contract law, as typically taught, has one foot in the quicksand of the past, Lawrence Cunningham’s Contracts in the Real World is a most welcome and liberating alternative.  Just consider the domain of what is commonly offered up:

  • sales of “Blackacre” circa the 18th and 19th centuries,
  • sailingships destined for Liverpool circa 1864,
  • carloads of Mason green fruit jars circa 1899,
  • a promise to pay ₤100 to anyone who contracted the flu after using a “Carbolic Smoke Ball,” circa late 19th century,
  • a 12-word “contract of sale” penned on the back of a “counter check,” circa early 1950s,
  • a material breach case about a dispute over the brand of pipe (Reading or Cohoes) to be used in the construction of a home (circa early 1920s),
  • representations made in 1959 in connection with a grocery “chain” begun in 1922 (by 2010 the “chain” was down to a lone store in Green Bay, Wisc.),
  • promises re an option to buy a ranch, circa 1960s, and
  • a 1965 contract involving the 78 year-old actress Shirley MacLaine (co-star of the 1960 movie The Apartment).

One need not be wed to Henry Ford’s maxim that “history is bunk” to appreciate that much of what is presented in contracts casebooks is past tense, past perfect, and past its time.  While such an approach to teaching contracts may be a boon to slothful professors averse to updating their class notes, it does little to prepare today’s law students for the challenges facing them in the 2012 marketplace of digital deals.

Real WorldGiven the yester-world of many contracts casebooks, it is refreshing to have a book that brings modernity onto the stage of legal education.  While Professor Cunningham pays due deference to the canonical cases (e.g., Lawrence v. Fox, N.Y., 1859), he does so in ways that reveal their contemporary relevance (e.g., as in how that precedent applied to a 2005 Wal-Mart dispute).  Moreover, what is so stimulating about his book is that Cunningham highlights the law relevant to current business dealings of everyone from Bernard Madoff and Donald Trump to Lady Gaga and Paris Hilton, and 50 Cent, too.  There is even a case involving a dispute over the rights to the HBO TV series The Sopranos.

Likewise, Cunningham both identifies and understands the real-world contexts of modern contract law involving everything from electronic transactions and confidentiality of information, to agreements re season tickets subscriptions for sports events, to entertainment contracts, to Amazon’s provider contracts, to any variety of contemporary non-disclosure agreements, et cetera.

In all of these ways and many others, Contracts in the Real World stands alone as a work that ushers the law of contracts into our times.

At the risk of sounding unduly laudatory, this book was a joy to read. Both stylistically and substantively, it is a work of admirable achievement without a real rival.  When one offers such acclaim, there is a corresponding obligation to justify it.  Hence, permit me to explain my evaluation, at least in summary fashion.

Pedagogical Approaches & Big-Picture Perspectives 

The structure of the book is sound; it reflects both a sober and informed understanding of how the law of contracts should be taught and how best to present the materials in order that they might be adapted for use with exiting casebooks.  The author covers all of the major topics and more.

The content is classical and contemporary.  As I have said, with this book the law of contracts stands to be modernized, something it sorely needs.  The book speaks to students in the culture of their times, and not in that of nineteenth-century England.  While most contracts casebooks recycle old “stuff” ad infinitumContracts in the Real World offers exciting new examples of how the law works today.

The pedagogical approach is instructive.  One example of what I mean here is the book’s use of codas.   The coda on formal rules versus contextual ones in the formation context, and the coda on formal rules versus flexible ones in the context of restitution and unjust enrichment, offer valuable cautionary lessons that are all-too-frequently overlooked by students barraged with rules and doctrines.

The book’s evolutionary approach (e.g., from the insights of Dean Langdell to the challenges posed by Baby M contracts and beyond) is most attractive.  The inclusion of a big picture perspective is also instructive.  The author’s “why” and “what” discussions along with his discussion of the “political philosophy” underlying contract law in a highly advanced capitalist culture take his readers outside of the dark and confining cabins of legal doctrine and into the sunlight of jurisprudence writ large.

Along the way, Professor Cunningham skillfully interlaces the main jurisprudential figures – e.g., Williston, Corbin, Langdell, Holmes, Cardozo, et al – into his narrative weave. Cunningham is also quite familiar with the relevant contract law scholarship, whether it be important but long-forgotten articles (e.g., Nathan Isaacs’ 1917 article on standardizing contracts) or significant new articles (e.g., Seana Shiffrin’s 2007 and 2009 articles on contracts, promises, and morals).  That said, Contracts in the Real World could have used a dollop of Posner here and there.  [See Lawrence A. Cunningham, “Cardozo & Posner: A Study in Contracts,” 36 William & Mary L. Rev. 1379 (1995).]

Welcome to the Real World (of Today’s Commercial World)

The way the author situates his doctrinal and policy analysis in actual commercial contexts is extraordinary.  Too much of contract law, as taught and written, is black-letter doctrine crammed into old conceptual boxes (the stuff Grant Gilmore railed against in The Death of Contract).  What is missing is “Llewellyn Realism” – that is, the ability to locate the law in the commercial settings in which it actually operates.

Chapter 3 (“Getting Out:  Excuses and Termination”) masterfully illustrates how the mechanics of the business world need to mesh with the law’s standards.  Clearly, Professor Cunningham knows the commercial world of which he writes and the law (old and new) which governs it. Chapter 3 illustrates this in vivid and educational detail.  There, Cunningham puts that knowledge to good use as he explains, among other things, the modern-day plights of the likes of a divorced couple forced to litigate their financial fates in the wake of the Madoff scandal and against the doctrinal backdrop of an 1887 case about an Angus cow.  The result is a remarkable narrative that brings the workings of today’s commerce into the world of yesterday’s law but with the added benefit of how that body of old law might be reshaped to suit new circumstances.

An increasing number of law professors are critical, and rightfully so, of the appellate-court-centric perspective offered in so many law school courses and texts.  One of the strengths of this book is that its domain is not confined to appellate court decisions.  As indicated above, the author has mined the fields of popular and commercial culture to offer up examples of contracts in context, in contemporary contexts moreover.  In this transactional world, bargaining for the deal can be more instructive to students than dissecting the entrails of appellate opinions.  (See Ronald Collins & Edward Rubin, “To Aid Business, Change Law School,” New York Times, March 5, 1995, sect. 3 (Business), p. 9)

Forward into the Future

The difficulty of framing any concept of “law” is that there are so many things to be included, and the things to be included are so unbelievably different from each other.  – Karl Llewellyn (1930)

Contracts in the Real World could become a significant breakout book in its field of study.  It does this by weaving historical materials with their contemporary counterparts to produce a useful and thoughtful little book that is engaging to read at every turn from contract formation to contract interpretation to the law of third-party beneficiaries.

With Contracts in the Real World we have tasted Modernity – and what a delight it is to savor!  This 254- page book with its nine inviting chapters could serve as a blueprint for a future generation of contracts coursebooks (notice I did not say casebooks).  The time has come to start anew, to bid farewell to sailing ships and greet the new world that harbors Modernity. Wearisome conformity aside, the time is ripe and the opportunities are ample.  Consider, for example, contracts coursebooks patterned after Contracts in the Real World with added features such as:

* Materials related to various transactional approaches to the law of contracts,

* Exercises in drafting contracts sensitive to the demands of negotiation and the requirements of law, and

* Exercises designed to revisit key concepts such as promise and consent and reconsider questions of interpretation in order to better understand how such matters operate in our current commercial culture.

And if such books were offered up in digital form to be read on iPads or their electronic counterparts, then a host of new materials (including audio-visual and interactive ones) could be presented to students to further enrich their education. (See Edward Rubin, editor, Legal Education in the Digital Age(2012)).

It is difficult to deny:  The law is the refuge of the antiquarian.  But it need not be simply so. It can step through the wide doors of time and into a world where a new reality beckons to be embraced.

[Posted by JT]  

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