Reviewing Larry DiMatteo and Irma Russell and Barbara K. Bucholtz, Part I

Students often ask me to recommend study aids.  I give them two bits of contradictory advice. First, I tell them they don't need any study aids for my course and that such aids might panic or confuse them.  Then I tell them that I've never found a bad one.  They all provide reliable, insightful, interesting takes on the material.  The dangers is only that they contain more wisdom than first-year students can digest.  The only thing I don't recommend is the thing they are most likely to use -- Quimbee videos.

But you know who does benefit from reading study aids, hornbooks, and treatises?  Contracts Profs.  I volunteered some time ago to review a book by Larry Di Matteo (right) and another by Irma Russell (below left) and Barbara K. Bucholtz (below right).  It has taken me a while to get to it, but I have decided to review them side-by-side, and chapter by chapter as I use them to help me refresh my approach to teaching contracts.  I should add that, while Professor DiMatteo's book is still quite new, having been published in 2023, Irma Russell and Barbara Bucholtz's book dates from 2011.  

After a short preface, Professor DiMatteo's book, Principles of Contract Law and Theory (Principles) begins with an introduction, covering history, law and equity, justifications for contract law, rules principles, and standards, specialized rules, and boundaries of contract.  As the preface makes clear, unlike most American books on the subject, Principles devotes equal time to UK and American law.  The book could serve as a textbook for "intermediate students" but also as a reference for scholars and practitioners looking for an introduction that will situate contracts doctrine in a theoretical frame. (xviii)

Indeed, this is not material that I would recommend to first-year students. Principles delves briefly and deftly into topics, like the relationship between canon law and common law (4-6), that are not usually the stuff of contracts hornbooks.  The subject-matter is interesting and leaves the reader wanting more.  The work is lightly footnoted.  For one used to the obsessive footnoting of law reviews, this makes for comfortable reading, but at times I wished I knew the sources in case I wanted to learn more about, say the role of late-19th century treaties in "developing a more rational and comprehensive system of rules and principles" (13) or how prior to the nineteenth century "much of contract theory was anchored in the Aristotelian idea of contract as commutative justice." (15)

There is a great deal that could be unpacked in the way Principles approaches justifications, drawing clear-cut lines between English law's preference for certainty and predictability, which yields formalist, bright-line rules, and the U.S. preference for justice in the particular case, which makes American law more open to squishy principles like good faith, unconscionability and good faith. (17-18) I assume these contracts get fleshed out in later chapters.  There is a richness in this opening chapter to which I cannot do justice in this space.  Suffice to say that it sets the table in way that leaves the reader hungry to learn more about literally dozens of subjects. 

In the introduction to their book, Mastering Contract Law (Mastering), Professors Russell and Bucholtz make clear that their book aims to provide an overview of topics covered in the first-year contracts course. However, it supplements its organization built on proving elements of a contract claim with an exploration of some of the transactional aspects of contracts law. (xxv)

The first chapter addresses  some preliminary matters before they move into the substance of doctrine.  Some of these matters, like seriousness of intention (2) and the UCC (7), are addressed briefly in just a paragraph, with indications of more to come in later chapters, while other topics, like the interests protected under contract law (2-4) and the movement towards uniform law (7-9) get lengthier, through still introductory treatment.  The discussion of the interests protected under contract law covers expectation, reliance, and restitution. The section on the movement towards uniformity focuses on the American Law Institute's Restatements and covers the history of the two Restatements of contracts law and the status of the Restatements as persuasive authority.

I'm a bit troubled by their section on implied-in-law and implied-in-fact contracts.  I don't think it's a good idea to link these ideas in students minds, as the former are not contracts, while the latter are contracts every bit as much as express agreements.  I am also a bit miffed that Mastering uses Wood v. Lady Duff-Gordon to illustrate implied-in-fact contracts.  That case involved an express agreement.  Judge Cardozo did not imply a contract in that case; he implied a term.  Similarly, the discussion of Sullivan v. O'Connor seems misplaced in this section, as Mastering uses that case to illustrate different measures of damages rather than implied contracts, whether in law or in fact.

These quibbles aside, the opening chapter provides clear guidance on a number of topics.  It begins with five basic questions that one can ask of a typical contracts problem (1-2), and it concludes with six "checkpoints" that provide a quick overview of the first chapter's themes.