Owens Rhetoric

By the end of the 19th Century, Gilmore writes, several “rules” of Contract law had been attached to what were once specific cases.  The rules “had been generalized into abstractions that had little or nothing to do with the cases themselves.”  (Ch. 1).

In the case of Stilk v. Myrick, two seamen deserted a ship and the master promised the remaining men the divided wages of the deserters if those remaining would continue on without additional help.  When the master ultimately refused that promised payment and the seamen sued, the judge ruled that the plaintiffs were entitled to no more money than they originally signed on for.

In 1920, Professor Williston, in his treatise on Contracts, used the case name to label a rule on contract modifications, stating that no new contract can be formed based on work already required by a contracting party.  Gilmore complains that Williston’s rule from Stilk v. Myrick makes no sense in light of the facts from the case, as, indeed, the seamen presumably took on much more difficult and different roles down two men.  Gilmore dedicates 7 pages to the question: How did the name from one case came to stand for an abstract and un-fully-related rule?  He explores maritime law and the “vagaries of early nineteenth century English case-reporting.”  My impression from Gilmore’s telling is that something like a conventional wisdom built up around the reasoning in Stilk.  By the time Williston used the case, the facts had dissolved and a common understanding remained – a nugget-sized principle that sparked in heads when hearing the case name arose.  Sort of like Marbury‘s sparking the notion of judicial review.

In any event, Gilmore runs the reader through a couple more case-to-rule transformations.  As the cases become rules, the forgotten facts seem to rub akwardly against the rules.  Also, the rules conform with the theory of consideration that Williston believed essential to contract formation.  In his second lecture, Gilmore discusses Justice Holmes’ belief that “the inevitable process of legal development” was from subjective to objective; from particular cases to generaly applicable rules.  The trend amplifies what Gilmore noted in his first lecture as he described cases becoming rules.  It is also clear that, if subjective/specific cases become objective/general rules, someone does the synthesizing – someone objectifies the legal principles.  Gilmore makes that point, though I didn’t notice him making the point outright.  Rather, we see consideration, a general avoidance of damages, and a hesitation to contract formation as what must have been biases among those that cemented Contract rules.

The forward’s writer to my edition wonders whether Grant Gilmore might have parodied the central criticism of the book: creating legal theory with oversimplified and fabricated legal history.  To be sure, Gilmore presents, in Death of Contract, an approximately 100-years’ history of the law.  And, his account of contract theory is tidy  (the chapters are telling: Origins, Development, Decline and Fall, Conclusions and Speculations).

Gilmore’s history of contract law sets up, ultimately, his broader statement that the law reflects its socio-political environment.  That, alone, is not spectacularly insightful.  Gilmore couples the thought, though, with his observation that legal theoretical structure swings between classical and romantic trends–between, that is, tidy categorization (classical) and improvised chaos (romantic).  In the law of “civil obligation,” Gilmore believes contract law was shaped into a classically organized theory beginning shortly after the Civil War, and then, after that order decayed, reached the height of romanticism in the late 1970s.  The book ends with a predicted return to order.  Gilmore, as I read him, did not appear dedicated to either.  But before we tackle the substance of that debate, it is worthwhile to linger on Grant Gilmore’s account of legal history.  And, as history requires characters to manifest a story, Contract is the protagonist in this tale.

A hundred years before Gilmore’s lectures, “classical” contract theory arose.  That it arose irks Gilmore, and he dedicates the tone and asides in the first two lectures to emphasizing his disapproval.  The first lines refer to Professor Langdell’s casebook on Contracts, published in 1871; the first casebook on the subject, and the beginning, according to Gilmore, of an unnecessary and damaging exercise in legal categorization.  Oliver Wendell Holmes, Jr. and Samuel Williston carried, cleansed, and made absolute the theory of Contract with publications in 1881 and 1920, respectively.  But, by 1950, Professor Corbin was dismantling the artificial edifice of Contracts theory.

Langdell, then, did little more than launch the idea that there was – or should be – such a thing as a general theory of contract.  The theory itself was pieced together by his successors – notably Holmes, in broad philosophical outline, and Williston, in meticulous, although not always accurate, scholarly detail.  At this point it is necessary to give some content to what we may call the Holmes-Williston construct – which I shall attempt to do impressionistically rather than scientifically.  Having accomplished that chore, we can return to the far more interesting business of speculating on why Langdell’s idea, brilliantly reformulated by Holmes, had the fabulous success it did instead of going down the drain into oblivion as a hundred better ideas than Langdell’s do every day of the week.

Gilmore refers to the Langdell/Holmes/Williston line as “classical contract” theory, and I’ll do the same.  What is classical contract theory, and why jurists create it?  In his chapter, the “Origins,” of classical contract theory, Gilmore goes into the details of a few cases that were picked up in early Contracts treatises “because … the devious process by which the ‘cases’ became the ‘rules’ of the general theory of contract can be understood only microscopically.”  Indeed, that transformation of “cases” to “rules” is crucial element to the artificial building up of contract theory.

(I’ll continue this post presently.)