Jeffrey Lipshaw on the Passing of Charles Fried

Charles Fried:  A Personal Appreciation 
Jeffrey Lipshaw

In 2004, I was the general counsel of a chemical company, flirting with the law school in our city about joining its faculty in some capacity to run a center on entrepreneurship and law.  It quickly became apparent that the only way to do the job correctly was to be a full-fledged member of the faculty.  The dean advised me, regretfully, that I was not qualified to join the faculty as I had never published any scholarly articles.  At the time I was twenty-five years out of law school, and I am pretty sure that I had no idea what a legal scholarly article was.  But we were in the throes of trying to comply with Sarbanes-Oxley, and I knew intuitively that there was a disconnect between the corporate governance aims of the statute and what its algorithms actually required.  I had done a lot of reading on moral philosophy that I thought might be helpful.  With the confidence that only complete ignorance could justify, I blithely replied, “Fine, I’ll publish a scholarly article.”

Matthew W. Hutchins of the Harvard Law Record,
CC BY 2.0, via Wikimedia Commons

So I started reading.  And quickly discovered the dominance of “law and economics,” and particularly this fellow Richard Posner.  And I was aghast at the reductionism, the disdain for moral intuition that had been so important in my career.  At some point, I found my way to the issue of the Harvard Law Review containing Posner’s 1997 Oliver Wendell Holmes Lecture on “The Problematics of Moral and Legal Theory,” as well as the responses from luminaries like Ronald Dworkin, Anthony Kronman, and Martha Nussbaum.  One of the responses that struck home for me was titled “Philosophy Matters,” by a person named Charles Fried.  To this day, his parting shot at Posner sticks with me:  “As so often happens, the skeptic here is a disappointed absolutist, taking his revenge on the world for depriving him of all the right answers at once.”

Which led me to Contract as Promise, and the arguments that there were reasons for the social institution of contract law other than those capable of being reduced to economists’ curves. 

Fast forward to fall 2005.  I was visiting at Wake Forest and through this very blog had become friends with Frank Snyder, its founding editor. As I recall, the gatherings now referred to as K-CON were just getting underway by way of Frank and others.  I said to Frank, “2006 will be the 25^th anniversary of the publication of Contract as Promise in 1981.  You should organize a retrospective around it.”  To which Frank replied, “Great idea. Call Fried.” This was funny. I was a less than nobody visiting professor, and I was going to call Charles Fried? I can’t now remember if I called, emailed, or wrote a letter, but I did get a very cordial voicemail back in which he thanked me but said he was already committed to a number of things and wouldn’t be able to get involved.

Fast forward to 2010.  I had now been on the faculty at Suffolk for several years.  One of the professors in Suffolk’s philosophy department, Nir Eisikovits, was a lawyer and close with a number of people on the law faculty.  I can’t remember why, but I met with Nir and the chair of the philosophy department, Greg Fried.  Somewhere in the conversation, Greg mentioned that his father was on the Harvard faculty, and it finally sunk in that he meant Charles.  To which my response was “Really?  Five years ago I tried to get him involved in a 25^th anniversary retrospective on Contract as Promise.  Do you think he’d be interested in doing one at Suffolk for the 30^th?” Within a week, I was sitting with Charles in his HLS office, jotting down the names of the people he thought I should invite, the first of which was Richard Posner, as my “anchor” participant.  Posner promptly accepted (but withdrew later).  The result was a day-long symposium in 2011, with the following participants (in addition to Charles, who closed the proceeding), all of whom came in large part because of their intellectual and personal regard for Charles: Tim Scanlon, Robert Scott, Barbara Fried, Jean Braucher, Randy Barnett, Gregory Klass, Brian Bix, Richard Craswell, Avery Katz, Alan Schwartz, Daniel Markovitz, George Triantis, Juliet Kostritsky, Seana Shiffrin, Curtis Bridgeman, John C.P. Goldberg, Henry Smith, Roy Kreitner, and Nathan Oman.

One of the great pleasures was that I picked Charles up at his house and hosted him through the day.  Sometime later he invited me to the public debate he and Greg had with Alan Dershowitz at the Brattle Theater on whether torture could ever be justified (Dershowitz: yes; Frieds: no), and the after-party at which I wandered around starstruck (I turned around and accidentally bumped into Stephen Breyer). 

If you want evidence of Charles Fried’s intellectual legacy, see Volume 45, Issue 3 of the Suffolk University Law Review.  It will be there forever.  But his friendship and graciousness are what I remember, and it will always be a highlight of my professional life.