Cases and Controversies: Some Things to Do with Contracts Cases

INTRODUCTIONNearly a century and a half has passed since Christopher Columbus Langdell waded ashore at Harvard Law School, bringing to its benighted natives the civilizing influence of law study through the "case method."1 Like his namesake, Langdell has long since sailed on to a more distant shore, but his legacy remained at the heart of legal instruction throughout the twentieth century, and persists into the present day.As a co-author of one of the two dozen or more currently-in-print Contracts casebooks,2 I obviously have both a point of view about, and a personal stake in, the survival of this particular method of instruction. Whether the legal casebook-or any other book, in the form of bound sheets of paper-will remain a part of our academic culture much longer is clearly up for grabs, however. Electronic records have so many advantages over the printed page that, at least for many purposes, they will surely become the dominant form of preserving, retrieving, and transmitting information, if indeed they are not already. But through whatever medium, I hope that legal training will continue to retain the study of "cases" as an important component of a legal education. In this brief discussion I will ruminate a little about the various ways in which case study can contribute to law study-or at least to the study of contract law, the area with which I am most familiar.Stretching back at least to Richard Danzig's 1975 exploration3 of Hadley v. Baxendale,4 contracts scholars have engaged in what is sometimes referred to as "legal archaeology." 5 They examine well-known contracts cases from a variety of angles-historical, sociological, economic, or what-have-you-to see what insights can be gleaned therefrom.6 Many cases familiar to several generations of law students have been subjected to this kind of inquiry, with interesting and sometimes surprising results. Besides Hadley, prominent cases given this sort of in-depth analysis include Peevyhouse v. Garland Coal & Mining Co.,7 Alaska Packers' Ass'n v. Domenico,8 Kirksey v. Kirksey,9 Mills v. Wyman,10 Williams v. Walker-Thomas Furniture Co.,11 and Hoffman v. Red Owl Stores, Inc.12 I did a little digging in this ground myself, some years ago, with an exploration of J.N.A. Realty Corp. v. Cross Bay Chelsea, Inc.13 Even some unpublished studies in this genre have found their way into semi-circulation.14 These individual pieces have in turn spawned anthologies in which such case studies are collected for law students, teachers, and other interested parties.15Professor Lawrence Cunningham's Contracts in the Real World16 is somewhat different in its approach. It aims to interest the modern reader in the stories of literally dozens of contract disputes, many of which have some present-day resonance, with an eye toward assembling these bits and pieces into a structure more or less recognizable as the American common law of contract. Although I admire both the ambition of Professor Cunningham's reach and the achievement of his grasp, my aim here is a much more modest one: it is merely to discuss some of the ways in which over several decades of teaching I have employed individual cases as part of the study of contract law.I. CHESTNUTS COASTING ON AN OPEN FIRE: THE CASEBOOK TRADITIONParticularly from the perspective of a casebook author (or editor, if you prefer), it seems that no method of case selection is more time-honored (or more vulnerable to criticism) than the recycling of old "chestnuts" familiar to generation after generation of law students. These are cases that one remembers for their facts-often odd, sometimes funny, always in some sense "memorable"-more than for their legal content. What law student does not remember at least some of the following cases: the broken mill-shaft;17 the wrong (non-"Reading") pipe;18 the falling block;19 the nephew's reward for not smoking;20 the bridge to nowhere;21 the hairy hand;22 the carbolic smoke ball;23 the two ships "Peerless";24 the surprisingly pregnant cow;25 or the letter to "sister Antillico"? …