Owens Rhetoric

For folks like me that went into law school following four years in the liberal arts, a tough transition was that from a semester of a couple dozen light paperbacks to only five, heavy, hardback casebooks.  The latter add gravity (in every meaning) to your bookcase, but the former are far more pleasurable to carry into the coffee shop.  Moreover, in college it is your job to read your professor’s several favorite gems – something our lacking diciplines allow too little time for outside the academy.

Fortunately, law school provides as much history, philosophy, and so on that you want to take from it.  Not knowing that, though, I remember my relief in the August before my first semester.  Having picked up the requisite volumes for Torts, Civil Procedure, Criminal Law, and Property, I saw next to the casebook for Contracts that the professor added one familiar gift to liberal arts set: a little paperback.  My hopes were fulfilled upon thumbing through the little book and seeing that it was a book of legal theory.  Not cases, not outlines, and not tips for passing a test; but theory.  And it had a bold title: The Death of Contract.  How, I wondered, was my Contracts professor going to apply this?

He didn’t.  We never read it, and it gathered dust on my bookshelf for the past six years.  My copy has an unappetizing grey/blue cover and I assumed it was simply a book about contract law, which I was happy to avoid.

I picked it up the other day while shifting some books around to make room on the shelf.  Since I was supposed to be cleaning, I naturally began idly reading the forward to the book.  Hmm, so this is a response to Oliver Wendell Holmes’s The Common Law.  This is about how law develops.  This is about law and language’s intertwined relationship.  And it’s so short.

So I brought Grant Gilmore’s The Death of Contract along for plane reading en route to a recent wedding, and have read about half now.  In a nutshell, he uses the rise of the common law of contracts to talk more generally about common law, or, judge-made law.  Really, it is not so right to say “the rise of the common law of contracts,” and this gets to Gilmore’s point.  There has long been plenty of useful law to talk about when arguing over contracts.  Gilmore’s gripe, if I am accurately getting to it, is with the manner in which the history of contract cases was solidified into a common law worthy of solidification into a treatise.

I will come to his attack on Holmes in a later post.  This one is just an introduction – if you have the book handy, have a quick read and join the book club.