Wednesday, March 8, 2023
A few years ago I was interviewing a clerk applicant, not Shawn, when somehow the topic of contract law came up. I said that I had been surprised at how much insightful literature had been written on the subject and added that the fellow who taught my contracts class, a professor named Melvin Eisenberg, had the best legal mind I had encountered. The applicant's response stunned me. "He takes judges seriously," he said. I don't know if I said it out loud, but I hired the applicant on the spot.
This symposium has given me the opportunity to think further about what my clerk said about Mel. Perhaps the best example of his taking judges seriously is his wonderful little book: The Nature of the Common Law. The book is brilliant on several levels but one is that he masterfully lays out the theory behind what judges are grasping at intuitively–sometimes well, sometimes not so well—when they resolve common-law issues. In my experience, every appellate judge who has been around a little while agrees that the book captures and explains what they aspire to do in their own work. When I was on the New Mexico Court of Appeals, the state Supreme Court invited Prof. Eisenberg to speak to all the State's appellate judges about his book. Despite some significant ideological differences among us, all were convinced. For several years the Chief Justice directed that each new judge on either court should be presented with a copy of the book.
I do not mean to suggest that Mel works like a theoretical physicist trying to formulate doctrine that can explain all the data points provided by judicial opinions. Such a venture would be doomed to fail because of all the experimental errors. But he does take judicial opinions seriously because they often reflect the social propositions that underlie common-law rulemaking. Consider my favorite Eisenberg article, the very useful “Third-Party Beneficiaries.” When he writes that his third-party-beneficiary principle "explains the results of many or most of the modern cases" or that "the general trend of the cases" adopts his position regarding when a prospective heir can sue the estate lawyer for misdrafting a will, his point is not to announce that judges deserve a passing grade. Rather, he is confirming his doctrine by pointing out that it reaches results that appeal to thoughtful neutral observers trying to do justice. His accomplishment is to identify the underlying principles that can explain judicial intuition.
After reading some of the earlier contributions to this symposium, however, I realize that I need to modify my thesis. When Mel takes judges seriously, he's doing nothing peculiar to judges. He takes every serious person seriously. Over the years he has sent various writings for me to comment on. I can say with great confidence, nay certainty, that nothing I said or wrote in his contracts class 52 years ago would commend me for that task. But he has an apparently insatiable appetite for other perspectives. He seems to enjoy the challenge of finding more substance in my comments than I consciously put in. His time would be better spent thinking alone. But I don't think he can help himself. He fully engages his brain with everyone. Both of my sons had an opportunity to talk with him one-on-one when they were in college. Each of them came away from the conversation thinking better about himself. One who had been diligently working on trying to express himself more articulately told me proudly that Mel had understood everything he had said. I was pleased, but I knew that no one could listen (or read) more carefully and discern the meaning of something expressed inartfully than Mel could.
Previous posts in the Symposium:
Virtual Symposium on the Contracts Scholarship of Mel Eisenberg, Part V: Introducing the Second Week
Subsequent posts in the series: