Monday, October 22, 2012
The following post is cross-posted from an online symposium that previously appeared on Concurring Opnions. The original post can be found here.
The title of Larry’s new book is Contracts in the Real World. Intentionally or not, the title suggests that there may exist another realm for contracts other than the real world, a realm that is perhaps more theoretical and not completely real. The alternate universe that most readily comes to mind is law school. Contracts in the real world exist in partial contrast to contracts in law school.
Contracts in the real world bind parties and counterparties to one another. Contracts in law school bind students to casebooks and laptops. Contracts in the real world frequently revolve around compensation, obligations, and duties. Contracts in law school frequently revolve around precedents, arguments, and defenses. Contracts in the real world are about contracts. Contracts in law school are about cases about contracts. Needless to say more, there exists a meaningful and significant gulf between contracts in the real world and contracts in law school.
Larry’s book serves a bridge across this gulf. Through wide-ranging popular stories about the prominent and the pedestrian crafted in accessible language yet not devoid of legal doctrine, the book connects contracts in law school with contracts in the real world. Law school concepts like offer, acceptance, mitigation, and assignment are illuminated by real world stories of popular contracts involving Pepsi ads, Dateline NBC, Redskins tickets, and Haagen-Dazs ice cream.
The conceptual meditations of contract scholars like Cardozo, Corbin, and Williston are expressed and explained in contract controversies involving well-known figures such as Michael Jordan, Maya Angelou, and Lady Gaga, and through common experiences like purchasing lottery tickets, signing mobile phone agreements, and buying football tickets online. Given the accessible language and popular stories, it is easy for the reader to be lulled into forgetting that they are reading and learning about the law, much in the same way that Tom Sawyer lulled his friends into whitewashing a fence by making it seem more like a treat than a chore.
Through stories, common and classic, Larry reminds us that contracts are not pacts chiseled in stone that bind parties to one another in an empty, static, and monochromatic world without regard for reason or sense. Rather, contracts are dynamic communions between parties that exist in a colorful world filled with complications, change, and consequence. This means that contracts manifest agreements that are frequently honored as intended, but it also means that contracts are sometimes modified, breached, and enforced against another’s preferences because these agreements exist in a dynamic world.
Throughout the book, Larry advocates for a thoughtful, balanced view of contract law; this balanced view departs from heedless, extreme views of contract law based on rigid and impractical notions of freedom of contracts or social justice that frequently find root in irreconcilable moral, political perspectives. Likewise, contracts in law school and contracts in the real world should strive to find what Larry calls a “sensible center.”
Scholars, students, and practitioners of contract law can all greatly benefit from finding this balanced core as well because contract law is perhaps most enjoyable, most thoughtful, and most useful, when theory and pedagogy meets experience and practice, when there is a meeting of the minds between contracts in law school and contracts in the real world.
Larry’s book is a much welcomed addition to the literature on contract law. It will be enjoyed by many who deal with contract law, be it in law school, the real world, or somewhere in between.
[Posted by JT]