Langdell on contracts and legal reasoning: Correcting the Holmesian caricature

Law and History Review

Volumn 25, Issue 2, 2007, Pages 345-399

  Kimball, Bruce A ^a  

^a OHIO STATE UNIVERSITY   (United States)

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EID: 64949130251     PISSN: 07382480     EISSN: None     Source Type: Journal    
DOI: 10.1017/S0738248000002959     Document Type: Article

References (316)

1. Quotations are from Lawrence M. Friedman, A History of American Law, 2d ed. (New York: Simon and Schuster, 1985), 275
2. J. Willard Hurst, Law and the Conditions of Freedom in the Nineteenth Century (Madison: University of Wisconsin Press, 1950), 10
3. On the grouping of Langdell with Holmes, Anson, and Pollock as leading contract theorists, Richard Bronaugh, "A Secret Paradox of the Common Law," Law and Philosophy 2 (1983): 193, 195n8
4. E. Allan Farnsworth, "Contracts Scholarship in the Age of the Anthology," Michigan Law Review 85 (1987): 1414
5. Kevin M. Teeven, A History of the Anglo-American Common Law of Contract (Westport, CT: Greenwood, 1990), 239
6. James Gordley, The Philosophical Origins of Modern Contract Doctrine (Oxford: Clarendon Press: 1991), 158
7. James Gordley, "Natural Law Origins of the Common Law of Contract," in Towards a General Law of Contract, ed. John Barton (Berlin: Duncker & Humboldt 1999), 428, 446
8. Patrick J. Kelley, "A Critical Analysis of Holmes's Theory of Contract," Notre Dame Law Review 75 (2000): 1696-97
9. Two decades later, Langdell produced one more writing on contracts hotly rebutting the charge made by Samuel Williston ["Successive Promises of the Same Performance," Harvard Law Review 8 (1894): 35], that Langdell overlooked the logical fallacy of "Mutual Promises [serving] as a Consideration for Each Other" [Harvard Law Review 14 (1901): 496-508.]
10. The leading analysis of this late, separable controversy [Bronaugh, "A Secret Paradox of the Common Law," 193-232] seems to misunderstand Langdell's rebuttal, which Frederick Pollock called "a masterly reply" in "Afterthoughts on Consideration," Law Quarterly Review 17 (1901): 422
11. William P. LaPiana, Logic and Experience: The Origin of Modern American Legal Education (New York: Oxford University Press, 1994), 3
12. See Grant Gilmore, The Ages of American Law (New Haven: Yale University Press, 1977), 41
13. William W. Wiecek, The Lost World of Classical Legal Thought: Law and Ideology in America, 1886-1937 (New York: Oxford University Press, 1998), 92-93
14. Steven D. Smith, "Believing Like a Lawyer," Boston College Law Review 40 ( 1999): 1077
15. Albert W. Alschuler, Law Without Values: The Life, Work, and Legacy of Justice Holmes (Chicago: University of Chicago Press, 2000), 87
16. Stephen A. Siegel, "John Chipman Gray and the Moral Basis of Classical Legal Thought," Iowa Law Review 86 (2001): 1524-27
17. Patrick J. Kelley, "Holmes, Langdell, and Formalism," Ratio Juris 15 (2002): 26-51
18. Gilmore, Ages of American Law, 41-67; Duncan Kennedy, 'Toward an Historical Understanding of Legal Consciousness: The Case of Classical Legal Thought in America, 1850-1940," Research in Law and Sociology 3 (1980): 3-24
19. On terminology, see the helpful note of Stephen A. Siegel, "Joel Bishop's Orthodoxy," Law and History Review 13 (1995): 216n6
20. O. W. Holmes, "Common Carriers and the Common Law," American Law Review 13 (1879): 909
21. See G. Edward White, Justice Oliver Wendell Holmes: Law and the Inner Self (New York: Oxford University Press, 1993), 139
22. Smith, "Believing Like a Lawyer," 1069-86
23. Three of these have not previously been recognized as Holmes's writing. See Appendix 2
24. The Little, Brown Co., Papers recently acquired by Houghton Library at Harvard University have not previously been examined by scholars; and I am grateful to Harvard Law School Special Collections Librarian David Warrington for calling them to my attention. Another archival source not previously examined is the copy of Langdell's Cases on Contracts (1871) that was owned and annotated by William A. Keener, the future dean of Columbia University law school, when he studied at HLS in the mid-1870s. I am very grateful to David Warrington for alerting me to the existence of Keener's copy that is held in the University of Virginia Law School Library Special Collections, and for arranging for me to examine it at Harvard Law School Library Special Collections, courtesy of the University of Virginia Law Library
25. C. C Langdell, A Selection of Cases on the Law of Contracts . . . Prepared for Use as a Text-Book in Harvard Law School (Boston: Little, Brown, 1870)
26. On the originality of Langdell's casebook, see B. A. Kimball, 'The Langdell Problem: Historicizing the Century of Historiography, 1906-2000s," Law and History Review 22 (2004): 335-37
27. B. A. Kimball and R. Blake Brown, "'The Highest Legal Ability in the Nation': Langdell on Wall Street, 1855-1870," Law and Social Inquiry 29 (2004): 80-83
28. C. C. Langdell, A Selection of Cases on the Law of Contracts . . . prepared for Use as a Text-Book in Hanvard Law School (Boston: Little, Brown, 1871), preface
29. Charles W. Eliot, Annual Reports of the President and Treasurer of Harvard College 1879-80 (Cambridge: Harvard University Press, 1880), 16
30. Theophilus Parsons, The Law of Contracts (Boston: Little, Brown & Co., 1853, 1855), 1: x
31. Charles C. Grafton to Charles Warren (28 Oct. 1907), Charles Warren Papers, Special Collections, Harvard Law School Library, box 37
32. Quotations are from Daniel W. Wilder to Charles Warren (11 Oct 1907), Warren Papers
33. See, too, Jeremiah Smith, "Christopher Columbus Langdell '45," in Bulletin of Phillips Exeter Academy (Sept. 1906): 27-32, at 28
34. Joseph H. Choate to Charles Warren (18 Oct. 1907), Warren Papers
35. Even with this head start, Langdell undertook a massive project in a brief period. In the completed, 1871 edition of Cases on Contract, he drew only 35 percent of the cases (117/336) from Parsons's treatise. Unfortunately, the extant copy that Parsons presented to Langdell does not have any annotations reflecting Langdell's consultation in constructing Cases on Contract, Parsons, Law of Contracts, vol. 1, presentation copy to Langdell (Special Collections, Harvard Law School Library)
36. B. A. Kimball, ". . . The Inception of Case Method Teaching in the Classrooms of the Early C. C. Langdell, 1870-1883," Law and History Review 17 (1999): 57-140
37. Emphasis added. William W. Story, A Treatise on the Law of Contracts not under Seal (Boston: Little and Brown, 1844), v
38. William W. Story, A Treatise on the Law of Contracts, 5th ed. prepared by Melville M. Bigelow (Boston: Little, Brown & Co., 1874), 1: xiii
39. Parsons, Law of Contracts, 1: viii
40. Quoted in Note, Harvard Law Review 5 (1891-92): 89
41. As authorization for his inductive method, Langdell quoted on his title page the Latin maxim from Sir Edward Coke: "many times compendia sunt dispendia [shortcuts are a waste of time] and melius est petere fontes quam sectari rivulos [it is better to seek the sources than to follow the tributaries]." A few years later, Louis D. Brandeis testified that the principle was actively espoused, "Some of our professors are trying to inculcate in us a great distrust of textbooks, to prove to us the truth of the maxim - 'Melius est petere fontes quam sectari rivulas [sic].' When one sees how loosely most text-books are written and how many startling propositions are unsupported by the authorities cited to sustain them - the temptation to become a Convert of Coke's is very great." Brandeis to Otto A. Wehle (12 March 1876), Letters of Louis D. Brandeis, ed. Melvin I. Urofsky and David W. Levy (Albany: State University of New York Press, 1971), 1:7-8
42. C. C. Langdell, A Summary of the Law of Contracts (Boston: Little, Brown, 1880), 12, 11-12
43. A. W. B. Simpson, Legal Theory and Legal History: Essays on the Common Law (London: Hambledon Press. 1987), 315
44. Langdell, Cases on Contracts (1871), preface. Frederick Pollock later observed, "Decisions are made; principles live and grow. This conviction is at the root of all Mr. Langdell's work. . . ." Harvard Law School Association, Report of the Ninth Annual Meeting. . . 1895 (Boston, Harvard Law School Assn. 1895), 17
45. [Holmes,] "Review (1871)," 540
46. For example, the first case is entitled: "Payne v. Cave. In the King's Bench, May 2, 1789. (Reported in 3 Term Reports, 148.)" Langdell, Cases on Contracts (1870), 1
47. Sheldon M. Novick, ed., The Collected Works of Justice Holmes (Chicago: University of Chicago Press, 1995), 1:243
48. [Oliver Wendell Holmes, Jr.], "Harvard University Law School," American Law Review 5 (1871): 177
49. C. C. Langdell, A Selection of Cases on the Law of Contracts with a Summary of the Topics Covered by the Cases . . . prepared for Use as a Text-Book in Harvard Law School, 2d ed. (Boston: Little, Brown, 1879), v. On forbearance, compare the explanation of Thomas G. Barnes, "Introduction" to Langdell, Cases on Contract
50. (1871; reprint, Birmingham, Ala.: Legal Classics Library, 1983), 16, 25-26
51. Confirming the inductive character of his teaching, Langdell apparently referred to the index rarely in his own teaching, because his students James B. Ames and William A. Keener made copious annotations throughout their personal copies but scarcely touched the index
52. Alschuler, Holmes, 89-90
53. Of course, the language also reflects the "immediate and cataclysmic change in outlook" arising from the publication of Darwin's The Origin of Species in 1859
54. Michael T. Ghiselin, The Triumph of the Darwinian Method (Berkeley: University of California Press, 1969), 1
55. Little, Brown, & Co. Papers (Houghton Library, Harvard University), box 1, "Manuscript Cost book for Little Brown. 1865-," sect. L, 65
56. See Table 1. Geographical and chronological distribution of cases in C. C. Langdell, Cases on Contracts (1871)
57. For example: "these [English] rules hold in the civil law, and in the law of Scotland, as well as in our law." Langdell, Summary of Contracts, 13
58. Barnes, "Introduction," 15. See 18-20
59. [Oliver W. Holmes, Jr.], "[Review of] A Selection of Cases on the Law of Contracts . . . by C. C. Langdell... 181," American Law Review 6 (1872): 353-54 [hereafter 1872a]
60. Novick, Collected Works of Justice Holmes, 1:273
61. [Holmes,] "Review (1872a)," 353-54
62. An excellent discussion and demonstration of this point is found in LaPiana, Logic and Experience, 58-67
63. See James Kent, Commentaries on American Law (New York: O. Halsted, 1827), 2:363-436
64. Story, Law of Contracts, vii-x; Theron Metcalf, Principles of the Law of Contracts: As Applied By Courts of Law (New York: Hurd and Houghton, 1867), 349-57
65. Stephen M. Leake, The Elements of the Law of Contracts (London: Stevens, 1867), vii-xxii; Parsons, Law of Contracts, v. 1, xiii-xxviii; v. 2, iii-x
66. Francis Hilliard, The Law of Contracts, 2 vols. (Philadelphia: Kay, 1872)
67. Joel P. Bishop, The Doctrines of the Law of Contracts in Their Principal Outlines, Stated, Illustrated, and Condensed (St. Louis: Soule, Thomas & Wentworth, 1878)
68. In the late 1870s HLS Professor J. C. Gray, whose appointment Langdell had opposed, still categorized contracts according to their subject matter: services, money, or property. Wigglesworth, Class notes on Agency and Carriers, taught by John Chipman Gray, 1877-78, Harvard Law School Library, Special Collections, 1-2
69. Story, Law of Contracts, v. See Parsons, Law of Contracts, 1: vii, xi; Siegel, "Joel Bishop's Orthodoxy," 216-17
70. Teeven, A History of . . . Contract, 186, 198, 236-39
71. Robert H. Wiebe, The Search for Order, 1877-1920 (New York: Hill & Wang, 1967), 164. See pp. 133-63
72. Quotation is from Neil Duxbury, Frederick Pollock and the English Juristic Tradition (Oxford: Oxford University Press, 2004), 191
73. On the association of these four jurists with each other and with developing a principled system of contract law, see Farnsworth, "Contracts Scholarship," 1414
74. Teeven, A History of . . . Contract, 239; Gordley, Origins of Modern Contract, 158
75. Gordley, "Origins of the Common Law of Contract," 428, 446
76. Kelley, "Holmes's Theory of Contract," 1696-7; Duxbury. Frederick Pollock, 191-201. Cf. Alschuler, Holmes, 122-23
77. LaPiana, Logic and Experience, 188n19
78. Oliver Wendell Holmes, Jr., "Oration," in Harvard Law School Association, Report of the Organization and of the First General Meeting, 1886 (Boston: Harvard Law School Association, 1887), 38
79. Holmes, "Oration" (1886), 38. Pollock also subsequently endorsed the principle of parsimony that Langdell expressed. Duxbury, Frederick Pollock, 303
80. Story, Law of Contracts, vii-x; Story and Bigelow, Law of Contracts, v. 1
81. Of the 117 cases that Langdell drew from Parsons, 13 appear in Law of Contracts, 1: 403-8, addressing "Contracts on Time"
82. appear in vol. 1, bk. 2, 353-98 addressing "Consideration"; 17 appear in vol. 2, 34-51 addressing "condition"; 14 appear in vol. 1, 444-49, 582, and vol. 2, 182-88. The remaining 29 are scattered in Law of Contracts
83. Quotations are respectively from Kelley, "Holmes's Theory of Contract," 1706; LaPiana, Logic and Experience, 59
84. On these common elements, see Lawrence M. Friedman and Stewart Macaulay, "Contract Law and Contract Teaching: Past, Present, and Future," Wisconsin Law Review (1967): 812
85. Gordley, Origins of Modern Contract, 161-213
86. Simpson, Legal Theory and Legal History, 181-83
87. Patrick S. Atiyah, An Introduction to the Law of Contract, 4th ed. (New York: Oxford University Press, 1989), 45
88. Kelley, "Holmes's Theory of Contract," 1750
89. Duxbury, Frederick Pollock, 201-8
90. In the 1871 edition, Langdell added a third section on "Conditional Contracts," and divided "Consideration" and "Conditional Contracts" into nine and ten subsections respectively, while he also promised future volumes of Cases on Contracts and later elaborated the subdivisions in his Summary of Contracts, demonstrating that the categories of offer, acceptance, and consideration required augmentation. Nevertheless, the centrality of offer, acceptance, and consideration is shown by the fact that when Contracts was divided into "prescribed" and "not prescribed" courses in 1872-73 and 1873-74 academic years, the "prescribed" course was devoted to the first half of the casebook addressing offer, acceptance, and consideration, while the second half of the casebook addressing "conditional contracts" was relegated to the elective course
91. [Oliver Wendell Holmes, Jr.], "[Review of] The American Reports," 5 American Law Review 5 (1871): 550; Novick, Collected Works of Justice Holmes, 1:249
92. C. C. Langdell, A Selection of Cases on Sales of Personal Property. . . Prepared for Use as a Text-Book in Harvard Law School (Boston: Little, Brown, 1872), vol. 1. Similar to the production of Cases on Contracts, a pre-print of the first half of this volume was issued in February 1871 and may have been used in Langdell's 1871-72 course on Sales. Little, Brown Papers, box 1, "Manuscript Cost book for Little Brown. 1865-," sect. L, 65. But no copy of the pre-print has been found at Harvard Law School Library, and only the full volume now exists
93. The casebook is scarcely noticed by leading historical analyses of the subject and overlooked even when modern casebooks recount their antecedents. Karl Llewellyn, "Across Sales on Horseback," Harvard Law Review 52 (1939): 725-46
94. Karl Llewellyn, "The First Struggle to Unhorse Sales," Harvard Law Review 52 (1939): 873-904
95. Lawrence M. Friedman, "Formative Elements in the Law of Sales: The Eighteenth Century," Minnesota Law Review 44 (1960): 411n
96. Deborah K. Nelson and Jennifer L. Howicz, Williston on Sales, 5th ed. (Deerfield, III.: Clark, Boardman, Callaghan, 1994), 1-5
97. John O. Honnold and Curtis R. Reitz, Sales Transactions: Domestic and International Law: Cases, Problems, and Materials, 2d ed. (New York: Foundation Press, 2001), 1-7
98. A search in LEXIS found that, since 1975, only three articles mention Langdell's Cases on Sales, none in regard to its substantive content
99. 29 Car. II, c. 3, ss. 17 (1677). This account is drawn from Friedman, "Formative Elements in the Law of Sales," 458
100. Friedman, A History of American Law, 262-63, 540
101. Nelson and Howicz, Williston on Sales, 2-5; Honnold and Reitz, Sales Transactions, 4-5
102. Kent, Commentaries, 2:363; Story, Law of Contracts, 479-553
103. Metcalf, Law of Contracts, 349-50, 355-57
104. J. G. Martin, Legal Biography or a Thesaurus of American, English, Irish, and Scotch Law Books (Philadelphia: Johnson, 1847), 387
105. The only two treatises appear to be: William W. Story, A Treatise on the Law of Sales of Personal Property (Boston: Little and Brown, 1847)
106. Francis Hilliard, A Treatise on the Law of Sales of Personal Property (New York: Halsted and Voorhis, 1841)
107. Colin Blackburn, A Treatise on the Effect of the Contract of Sale on the Legal Rights of Property and Possession in Goods, Wares and Merchandise, 1st ed. (London: William Benning, 1845)
108. Judah P. Benjamin, A Treatise on the Law of Sale of Personal Property (London: H. Sweet; Washington, D.C.: Morrison, 1868)
109. See Robert D. Meade, Judah P. Benjamin, Confederate Statesman (London: Oxford University Press, 1943), 337
110. William Holdsworth, A History of English Law, edited by A. L. Goodhart and H. G. Hanbury (London: Methuen, 1965), 15:303-5
111. David Gruning, "Book Review . . ." Loyola Law Review 47 (2001): 989
112. See, for example, Langdell, Cases on Sales (1872), 95-96, 1026, 1033
113. Langdell, Cases on Sales (1872), annotated by unidentified student (Special Collections, Harvard Law School Library), marginal notes on 153
114. Langdell, Cases on Sales (1872), annotated by Ames, marginal notes on 404-5
115. Friedman, "Formative Elements in the Law of Sales," 455
116. See Payne v. Cave 3 Term Reports 148, in Langdell, Cases on Contract, 1-3
117. As William A. Keener recorded about Payne v. Cave, "Prof. Langdell thinks that, on principle, the moment the bid was made and accepted . . . this was a contract, though not a sale. The fall of the hammer passing the property." Langdell, Cases on Contract (1871), annotated by Keener, 2marg
118. "Langdell and Holmes in the United States and Anson and Pollock in England . . . describe general contract law without trying to relate it to the law of sales, the law of leases, and so forth." Gordley, Origins of Modern Contract, 158
119. Gordley, "Origins of the Common Law of Contract," 446
120. Emphasis in original. James B. Thayer, "Lecture notes on Sales," v. 1, 1 (20 Sept. 1876), Thayer Papers, Harvard Law School Library, box 7, f. 3. Langdell's originality is likewise shown by the fact that in the late 1870s his colleague John Chipman Gray analyzed contracts according to their subject - services, money, or property - and included sales under the last. Wigglesworth, Class notes on Agency and Carriers, taught by John Chipman Gray, 1877-78, 1-2
121. Wigglesworth, Class notes on Agency and Carriers, taught by John Chipman Gray, 1877-78, 1-2
122. See Table 3, Geographical and Chronological Distribution of Cases in C. C. Langdell, Cases on Sales (1872)
123. [Oliver W. Holmes, Jr.], "[Review of] A Selection of Cases on Sales of Personal Property . . . by C. C. Langdell . . . 1872," American Law Review 7 (1872): 145-46 [Hereafter 1872b], at 145
124. James B. Thayer, "Lecture notes on Sales," v. 1, fly leaf (30 Oct. 1876), Thayer Papers, Harvard Law School Library, box 7, f. 3
125. Langdell, Cases in Equity Pleading . . . [Part I] (Cambridge: Printed for the Author, [1875])
126. Langdell, Cases in Equity Pleading . . . Part II (Cambridge: John Wilson, 1876)
127. Langdell, A Summary of Equity Pleading (Cambridge: Charles W Sever, 1877); Langdell, Cases in Equity Pleading (Cambridge: Printed for the Author, 1878)
128. [Oliver W. Holmes, Jr.], "[Review of] A Summary of Equity Pleading by C. C. Langdell . . . 1877," American Law Review 11 (1877): 763-64, at 763
129. G. Edward White, Justice Oliver Wendell Holmes: Law and the Inner Self (New York: Oxford University Press, 1993), 132-38
130. [Holmes], "Review (1877)," 763-64
131. Holmes to Langdell (3 March 1877) Oliver W. Holmes, Jr., Papers, Harvard Law School Library, microfilm reel 14
132. Little, Brown, Co. had printed 1,500 copies of each of the first two casebooks. Cases on Contract sold out in February 1878, while Cases on Sales old more slowly, but steadily, until being exhausted in 1892
133. Little, Brown Papers, box 11, "Copyright and Commission Accounts 1869," leaf "Monthly Sales 1873-1885" and "Yearly Sales 1885-1899," leaf 12
134. Langdell, Cases on Contracts (1879), with a summary appended. The new, brief subsection was entitled "From whom the consideration must move." (chap. 2, sec. 2.) Of the thirteen cases after 1869, eleven were English, and one each from New York and Massachusetts
135. Quotations are, respectively, from Langdell, Cases on Contracts (1879), vi, 985-1116
136. "[Review of] Langdell's Selected Cases on Contracts... 1879," Southern Law Review, n.s. 5 ( 1880): 872-73
137. The author was likely the editor Seymour D. Thompson, "a self-taught man who worked at a dozen occupations . . . before admission to the bar in 1869. In 1872 he began practicing law in St. Louis, where he . . . was elected Judge of the St. Louis Court of Appeals in 1880" and wrote a number of legal treatises. Arnold Paul, Conservative Crisis and the Rule of Law: Attitudes of Bar and Bench, 1887-1895 (Ithaca: Cornell University Press, 1960), 43n11
138. Within a dozen years, this review was quoted as exemplifying outmoded opinion in Note, Harvard Law Review 5 (1891-92): 89
139. William Schofield, "Christopher Columbus Langdell," American Law Register 55 o.s., 46 n.s. (1907): 273-96, at 286
140. citing James B. Ames, "Christopher C Langdell," Harvard Graduates'Magazine 15 (Dec. 1906): 213
141. M - ., "Langdell's 'Selected Cases on Contracts' [A reply]," Southern Law Review 6 (1880): 449
142. My analysis indicates that "M." was James J. Myers, one of Langdell's students between 1871 and 1873, who also defended Langdell's educational reforms in the anonymous articles '"Law Schools vs. Lawyers' Offices,'" Harvard Advocate (1 April 1873): 33-35, (11 April 1873): 50-51
143. "The Harvard Law School," Harvard Advocate (5 February 1875): 146-47, (19 February 1875): 8-9
144. A. V. Dicey, "An English View of American Conservatism," The Nation (25 March 1880): 229
145. On Holmes's authorship, see Saul Touster, "Holmes a Hundred Years Ago: The Common Law and Legal Theory," Hofstra Law Review 10 (1982): 695n91
146. William R. Anson, Principles of the English Law of Contract and of Agency in its Relation to Contract (Oxford: Clarendon, 1879)
147. [Holmes], "Review (March 1880)," 233
148. This account relies upon the magisterial interpretation of White, Holmes, 116-38
149. The presumed accuracy of Holmes's critique is traceable through the influential writing of Mark DeWolfe Howe, Grant Gilmore, and Thomas C. Grey. This lineage is discussed in Kimball, "The Langdell Problem," 302-22
150. Only a few changes were made from the 1879 version. Langdell, Summary of Contracts, v
151. [Oliver W. Holmes, Jr.], "[Review of] A Summary of the Law of Contracts by C. C. Langdell. . . second edition . . . 1880," American Law Review 14 (September 1880): 666
152. See Edward Q. Keasbey, "The Origin and Nature of Consideration in the Law of Contract," New Jersey Law Journal 6 (1883): 334
153. [Holmes], "Review (March 1880)," 234; Oliver Wendell Holmes, Jr., The Common Law (Boston: Little, Brown, 1881), 1, 5
154. The three: 297n2, 335n1, 337n1; the six: 286n3. 304n2-305n1-2, 316n4, 317n1, 327n1, 329n2, 339n1. Holmes, The Common Law
155. Kelley, "Holmes's Theory of Contract," 1756. In The Common Law; "Holmes made heavy use of Langdell's [Summary of Contracts], either by adopting without attribution one of Langdell's insights or by using Langdell's analysis as a starting point to develop his own theory, often by simply reducing Langdell's analysis to a more positivist form" (p. 1715)
156. See especially Mark DeWolfe Howe, Justice Oliver Wendell Holmes, vol. 2, The Proving Years, 1870-1882 (Cambridge: Harvard University Press, 1963), 228-30, 241,246
157. See, also, Morton J. Horwitz, The Transformation of American Law; 1870-1960 (New York: Oxford University Press, 1992), 37-38
158. Kelley, "Holmes's Theory of Contract," 1746
159. Langdell, Summary of Contracts, vi
160. White, Holmes, 172
161. [Holmes], "Review" (Sept. 880)
162. Letter from Oliver Wendell Holmes, Jr., to Frederick Pollock (10 April 1881), in Holmes-Pollock Letters . . . 1874-1932, ed. Mark DeWolfe Howe, 2d ed. (Cambridge: Harvard University Press, 1961), 1:17
163. J. H. Baker, Book Review . . . . Modern Law Review 43 (1980): 469
164. LaPiana, Logic and Experience, 76-78; Anthony J. Sebok, "Misunderstanding Positivism," Michigan Law Review 93 (1995): 2087
165. Kelley, "Holmes's Theory of Contract," 1687-89; Joseph M. Perillo, 'The Origins of the Objective Theory of Contract Formation and Interpretation," Fordham Law Review 69 (2000): 429. 462
166. Quotations are from Perillo, "Objective Theory of Contract," 427. Cf. pp. 427-29, 463
167. Lawrence M. Friedman, Contract Law in America (Wisconsin: University of Wisconsin Press, 1965), 87
168. Gordley, Origins of Modern Contract, 161-63; Horwitz, Transformation of American Law, 1870-1960, 36-39
169. Kelley, "Holmes's Theory of Contract," 1694-96, 1756-57; Duxbury, Frederick Pollock, 191-201
170. Howe, Holmes, 2:246
171. See Grant Gilmore, The Death of Contract (Columbus: Ohio State University Press, 1974), 35
172. Farnsworth, "Contracts Scholarship," 1412; Horwitz, Transformation of American Law, 1870-1960, 37-38
173. As late as 1896, Holmes imputed the will theory to Langdell, thereby encouraging modern scholars to attribute to Langdell a "preoccupation with subjective consent." David J. Seipp, "Holmes's Path," Boston University Law Review 77 (1997): 526-27
174. Langdell, Summary of Contracts, 244
175. Kelley, "Holmes's Theory of Contract," 1756
176. See, also, Perillo, "Objective Theory of Contract," 464
177. Langdell, Cases on Contract (1871), annotated by Keener, 3marg, 13marg
178. Langdell's explicit refutation antedated Pollock as well. Duxbury, Frederick Pollock, 194-96
179. See also Gilmore, Death of Contract, 19-21; Farnsworth, "Contracts Scholarship," 1412
180. Patrick S. Atiyah, Essays on Contract (Oxford: Clarendon Press, 1986
181. 2d ed., 1990), 60; Curtis W. Nyquist, "Contract Theory, Single Case Research, and the Massachusetts Archives," Massachusetts Legal History 3 (1997): 75-76
182. Holmes, The Common Law, 293-94
183. Kelley, "Holmes's Theory of Contract," 1722, 1757
184. Atiyah, Essays on Contract, 68
185. See Duxbury, Frederick Pollock, 163, 206-9; Friedman, A History of American Law; 277
186. Atiyah, Law of Contract, 124-60
187. Langdell, Cases on Contract (1871), annotated by Ames, 41marg
188. Metcalf, Law of Contracts, 161-63
189. See Kent, Commentaries, 2:364-65
190. Frederick Pollock, Principles of Contract at Law and in Equity (London: Stearns, 1876), 154-58
191. Anson, English Law of Contract, 61
192. Keasbey, "Consideration in the Law of Contract," 296
193. Quotation is from Gordley, Origins of Modern Contract, 173, who cites the tenth edition (1936) of Frederick Pollock, Principles of Contract, and attributes "the core idea" to the first edition of 1876 (150-51), although Pollock does not there or elsewhere reduce consideration to detriment
194. Holmes, The Common Law, 290. Holmes proceeded to define consideration as whatever the parties declare to be the inducement for their promise. (292) The fundamental point, which Langdell had introduced, was that the law would not try to determine the "actual" inducement apart from what the parties declare to be their inducements. Kelley, "Holmes's Theory of Contract," 1757. Cf. Gilmore, Death of Contract, 19-21
195. James Barr Ames, "Christopher Columbus Langdell, 1826-1906," in Great American Lawyers, ed. William D. Lewis (Philadelphia: John C. Wilson, 1909), 8:465-89, at 479
196. Wigglesworth, Class Notes of Contracts taught by Ames, 1876-77, leaves 1-2
197. Ames, ". . . Langdell, 1826-1906," 479. "the contract is unilateral, [if] consisting of a promise on one side, and something given or done (not promised to be given or done) on the other. If there is a promise on each side, and yet but one contract, the contract is bilateral; and if the making of a promise is the only thing given or done on either side, the contract is purely bilateral. . . ." Langdell, Summary of Contracts, 102-3
198. "Contracts arising from mutual promises are Bilateral. Contracts arising from shipment of goods by order, allotment of shares, guaranties, etc. are unilateral, binding offeror . . . .[In] ordinary unilateral contracts, e.g. those arising from shipment of goods according to order, the offeree is not required to give notice of the performance of the act requested . . . ." Langdell, Cases on Contract (1871), annotated Ames, flyleaves. See, also, Langdell, Cases on Contract (1871), annotated by Keener, 1marg, 3marg-6marg, 37marg
199. Perillo, "Objective Theory of Contract," 452
200. Offord v. Davies, 12 C.B.N.S. 748 (1862, Eng.)
201. Leake, Elements of . . . Contracts, 26-38. Leake's term is operational, overbroad in some respects, and too narrow in others, whereas Langdell's unilateral/bilateral distinction is more precise and salient
202. Pollock, Principles of Contract, 148, 27
203. "The terms unilateral and bilateral are disappearing since the bifurcation does not encompass the formation of all contracts." Teeven, A History of . . . Contract, 179. Cf. Farnsworth, "Contracts Scholarship," 1410-11
204. See Karl Klare, "Contracts Jurisprudence and the First-Year Casebook [Book Review]," New York University Law Review 54 (1979): 878
205. Thomas C. Grey, "Langdell's Orthodoxy," University of Pittsburgh Law Review 45 (1983): 36
206. Friedman, Contract Law in America, 212
207. Gilmore, Ages of American Law; 62
208. Friedman and Macaulay, "Contract Law and Contract Teaching," 805-6
209. Teeven, A History of. . . Contract, 218
210. Patterson, "Langdell's Legacy," 198-201
211. Horwitz, Transformation of American Law; 1870-1960, 189
212. Kenneth J. Vandevelde, Thinking Like a Lawyer (Boulder, Col: Westview Press, 1996), 114-17
213. Siegel, "John Chipman Gray," 1524-27
214. Wiecek, Classical Legal Thought, 92-93
215. Kelley, "Holmes's Theory of Contract," 1704-10,1755-56
216. Emphasis in Holmes's original. [Holmes], "Review (March 1880)," 233, quoting Langdell, Summary of Contracts, 20-21
217. The authority of Holmes's critique is traceable through the influential writing of Mark DeWolfe Howe, Grant Gilmore, and Thomas C. Grey. This lineage is discussed in Kimball, "The Langdell Problem," 302-22
218. I am grateful to Daniel R. Coquillette for this insightful comparison
219. Howard Schweber, 'The 'Science' of Legal Science: The Model of the Natural Sciences in Nineteenth-Century American Legal Education," Law and History Review 17 (1999): 460
220. quoting Langdell, Summary of Contracts, v. See Siegel, "John Chipman Gray," 1516
221. Kelley, "Holmes's Theory of Contract," 1710
222. See Appendix 1, Headings in Langdell's Summary of Contracts. The correspondence holds if one subsumes under the casebook's undivided chapter on
223. The availability of the summary had the potential of turning the case method from inductive into illustrative; and subsequent HLS professors felt that "too much help was thus given to the student by [Langdell's] summaries; and . . . the later Harvard case books contained no summary" with a few exceptions. The Centennial History of the Harvard Law School, 1817-1917 (Cambridge: Harvard Law School Assoc., 1918), 81
224. Langdell, Summary of Contracts, v. The preface to the Summary implies that Langdell was unenthusiastic about issuing it separately and seems to have done so only at the urging of the publisher, which envisioned a separate market for it. (pp. iii-iv.)
225. Quotation is from Kelley, "Holmes's Theory of Contract," 1710
226. See LaPiana, Logic and Experience, 58, 65, 78
227. LaPiana, "Just the Facts: The Field Code and the Case Method," New York Law School Law Review 36 (1991): 304
228. Kimball and Brown, "Langdell on Wall Street," 75-83
229. "A legal system is acceptable to the extent that it fulfills the ideals and desires of those under its jurisdiction. . . ." Grey, "Langdell's Orthodoxy," 10
230. Pollock, Principles of Contract, 13
231. Adams v. Lindsell, 1 B.&Ald. 681, 106 Eng. Rep. 250 (K.B. 1818)
232. Sebok, "Misunderstanding Positivism," 2078
233. McCulloch v. Eagle Ins. Co., 18 Mass. (1 Pick.) 278 (1822)
234. Langdell, Summary of Contracts, 16-18. Quotation is from 16
235. See Grey, "Langdell's Orthodoxy," 16-24
236. Howe, Holmes, 2:243n50. See Touster, "Holmes," 695n91
237. Quotations are from Grey, "Langdell's Orthodoxy," 13-14
238. Grey, "Langdell's Orthodoxy," 15
239. Patterson, "Langdell's Legacy," 198. See Siegel, "Joel Bishop's Orthodoxy," 221n23
240. See Mathias W. Reimann, "Holmes's Common Law and German Legal Science," in The Legacy of Oliver Wendell Holmes, Jr., ed. Robert W. Gordon (Stanford: Stanford University Press, 1992), 256n98, 261n148, 262n154
241. Siegel, "John Chipman Gray," 1524-26. Grey's interpretation is analyzed in Kimball, 'The Langdell Problem," 316-22
242. Howe, Holmes, 2:243n50. See Siegel, "John Chipman Gray," 1524; Alschuler, Holmes, 90
243. Quotations are from Friedman, A History of American Law, 539, 534-35
244. Norman K. Risjord, Chesapeake Politics, 1781-1800 (New York: Columbia University Press, 1978), 182
245. See A. G. Roeber, Faithful Magistrates and Republican Lawyers . . . 1680-1810 (Chapel Hill: University of North Carolina Press, 1981), 112-202
246. Quotation is from Perillo, "Objective Theory of Contract," 441
247. See 441-42, citing and quoting cases: Beane v. Middleton, 4 H. & McH. 74, 78 (Maryland 1797)
248. Wilkie v. Roosevelt, 3 Johns Cas. 206 (New York Sup. Ct. 1802)
249. Paul v. Frazier, 3 Mass. 71, 73 (1807)
250. Hallett v. Wylie, 3 Johns. 44, 46 (New York 1808)
251. Banorgee v. Hovey, 5 Mass. 11, 23 (1809)
252. Parsons, Law of Contracts, 2:33. See also 1:522-26
253. Kevin M. Teeven, "Conventional Moral Obligation Principle Unduly Limits Qualified Beneficiary Contrary to Case Law," Marquette Law Review 86 (2003): 715-16
254. See, for example, Langdell, A Summary of Equity Pleading, 2d ed. (Cambridge: Charles W. Sever, 1883), ss. 109-111, 113, 119
255. Famsworth, "Contracts Scholarship," 1430-31. Ames, for example, credited Langdell with introducing and establishing the point that forcing "specific performance" on a contract in common law was a misnomer, drawn from equity, and actually referred to requiring "specific reparations" for breach of contract. Ames, " . . . Langdell, 1826-1906," 479
256. Quotation is from White, Holmes, 152
257. Touster, "Holmes a Hundred Years Ago," 679-80
258. In Robert Gordon's memorable phrase, "The Common Law . . . is a book at war with itself." Robert Gordon, "Holmes's Common Law as Legal and Social Science," Hofstra Law Review 10 (1982): 720-21
259. Anson, English Law of Contract, 2d ed. (Oxford: Clarendon, 1883), 30-31
260. Holmes, The Common Law, 305. This concession also implies that Holmes knew he was oversimplifying Langdell's view with the "irrelevancy" quotation in his 1880 review
261. Pollock, Principles of Contract, 11-13. See 18
262. Quotation is from Grey, "Langdell's Orthodoxy," 15. Grey cites a number of the following instances of Langdell "appealing to considerations of justice or policy" but does not regard these as "justify[ing] a bottom-level rule or individual decision." (pp. 14, 13-14n50.)
263. Quotations are from Langdell, Summary of Contracts, 8-9
264. Quotations are from ibid., 244
265. Langdell references cases in Cases on Contracts, 125, 129, 136, 156, 160-61
266. Quotations are from Langdell, Summary of Contracts, 169-70
267. Case references are made on 170-71
268. Emphasis added. Ibid., 177
269. Otherwise, it would be "very harsh," or unfair, for the debtor to gain relief from the debt through an agreement intended to effect payment of the debt. Applying the rule to a specific case "in building contracts," Langdell maintained that a condition, such as procuring "the architect's certificate," would be unfair if the architect is "employed . . . by the [owner] who makes the condition" and who seeks to avoid paying the builder by withholding the certificate. In this situation, "the court should not, therefore, give a condition such a construction, if it can fairly avoid doing so." Langdell, Summary of Contracts, 44-45
270. Langdell maintained that, in order to avoid "hardship," the court will read a condition subsequent into a contract when unforeseen dire events result in non-performance. In circumstances such as the death of a covenanter or the destruction of the property to be conveyed, Langdell states, "the hardship of requiring a party to pay damages for non-performance is so great as to raise a presumption that the event would have been made a condition subsequent if it had been foreseen." Langdell, Summary of Contracts, 54
271. "The only security that one ever has, when he performs a condition precedent, that the covenant or promise will be performed, is an action for damages. . . .The only way in which the law can relieve a plaintiff [covenantor] from this hardship is by making the condition concurrent, and that the law does whenever it can . . . " Langdell, Summary of Contracts, 228-29
272. A sterile formalist would justify the rule by appeal to the logical principle that the third-party beneficiary was not a party to the mutual assent between offeror and offeree. But Langdell invoked fairness: a rule allowing third-party beneficiaries to sue exposes the promisor to extended liability, because "the promisor would be liable to two actions." Langdell, Summary of Contracts, 79
273. Kimball, 'The Langdell Problem," Table 1
274. Grey, "Langdell's Orthodoxy," 13-14; Stephen N. Subrin, "David Dudley Field and the Field Code: A Historical Analysis of an Earlier Procedural Vision," Law and History Review 6 (1988): 336-37
275. Langdell, "Partnership and Commercial Paper," v. 1, leaves 9-11, 48-49
276. See Ames, " . . . Langdell, 1826-1906," 479
277. Parsons, Law of Contracts, 1:516-17, 520-23
278. Parsons, Law of Contracts, 1:517n, 522n-523n
279. Langdell, Cases on Contracts (1879), 33-38
280. Offord v. Davies, 12 C.B.N.S. 748 (1862, Eng.). Langdell dismissed a contemporary decision contra as "erroneous." Langdell, Summary of Contracts, 3n3
281. Bradbury v. Morgan, 1 H.& C. 249 (1862 Eng.). He referred the reader to his casebook, where, in a long note, he explained that the court had misconstrued a guaranty as a contract of suretyship, contrary to statute
282. Langdell, Summary of Contracts, 3
283. Parsons, Law of Contracts, 2:33; 1:516-17
284. Pollock, Principles of Contract, 29. Pollock did not cite Offord v. Davies
285. See Metcalf, Law of Contracts, 191-220; Leake, Elements of . . . Contracts, 25
286. Quotations are from Langdell, Summary of Contracts, 4-5
287. Quotation is from Kelley, "Holmes's Theory of Contract," 1708n106
288. The terms appear in [Holmes], "Review (1877)," 764
289. Langdell's "official" view is well expressed in his 1871 letter to Yale President Theodore Woolsey: "The chief business of a lawyer is and must be to learn and administer the law as it is; while I suppose the great object in studying jurisprudence should be to ascertain what the law ought to be; and although these two points may seem to be a very kindred nature, I think experience shows that devotion to one is apt to give more or less distaste for the other." C. C Langdell to T. D. Woolsey, 6 February 1871, Theodore Dwight Woolsey Papers Yale University Library, Manuscripts and Archives, Box 23, folder 433
290. White, Holmes, 126,113,115
291. Touster, "Holmes a Hundred Years Ago," 687
292. G. Edward White, "Looking at Holmes Looking at Marshall," Massachusetts Legal History 7 (2001): 63
293. Quotation is from Reimann, "Holmes's Common Law;" 104
294. See, for example, 101-2 on Holmes's borrowing from Rudolf von Jhering
295. Quotations are from White, Holmes, 145, 150
296. Kelley, "Holmes's Theory of Contract," 1755
297. Grey, "Langdell's Orthodoxy," 3. See Teeven, A History of . . . Contract, 218
298. See Stephen A. Siegel, "Joel Bishop's Orthodoxy," Law and History Review 13 (1995): 215-59
299. "John Chipman Gray and the Moral Basis of Classical Legal Thought," Iowa Law Review 86 (2001): 1513-99
300. "Francis Wharton" Orthodoxy: God, Historical Jurisprudence, and Classical Legal Thought," American Journal of Legal History 46 (2004): 422-46
301. Langdell's view of the alternative resembles the view outlined in Charles Fried, "The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation," Yale Law Journal 85 (1976): 1060-89
302. Kimball and Brown, "Langdell on Wall Street," 49-100
303. Only Reimann, "Holmes's Common Law," 265n167, attributes this review to Holmes, but does not cite any source or reason and seems to just have assumed authorship
304. The author's editorial "we" would naturally refer to Holmes, who became the sole editor of the American Law Review in June, 1872, shortly after the full volume of Cases on Sales was published. In addition, having already reviewed the 1870 and 1871 versions of Cases on Contracts, Holmes would have likely continued the assignment by reviewing Langdell's next casebook. Furthermore, the review begins by addressing "these casebooks," as if resuming Holmes's earlier reviews of Cases on Contracts. [Holmes], "Review (1872b)," 145-46
305. Several of the points and language are repeated from the earlier reviews. Headnotes "are wisely omitted" from the 1870 casebook, "are purposely omitted" from the 1871 casebook "in order to make the student find out the principle . . . for himself," and "are all intentionally omitted" from the 1872 casebook "so that the learner may make them for themselves." Similarly, the development of the index was repeatedly encouraged. [Holmes,] "Review (1871)," 539; "Review (1872a)," 353; "Review (1872b)," 145
306. Emphasis added. Smith, "Langdell '45," 31; Ames, ". . . Langdell, 1826-1906," 476
307. Emphasis added. [Holmes], "Review (1872b)," 145-46
308. Holmes was still editing the American Law Review, so the author's editorial "we" would naturally refer to him. In addition, having already reviewed Langdell's earlier casebooks. Holmes would have likely continued the assignment
309. Calling this summary "most remarkable," the reviewer said it "could only have been written by a great lawyer" and "shows the hand of a master such as has rarely appeared in our literature." ([Holmes], "Review (1877)," 763.)
310. Holmes elsewhere commended Langdell's "remarkable powers," called him a "great lawyer" ([Holmes,] "Review (1872a)," 354)
311. and maintained that "no man . . . can read a page of [his work] without at once recognizing the hand of a great master." (Quoted in White, Holmes, 197
312. [Holmes], "Review (March 1880)," 233.) The reviewer of Summary of Equity Pleading further stated, "We do not say that the reader will not hesitate over some of the author's conclusions. . . . Mr. Langdell is far too original a thinker. . . . His advance is too irresistible to be stopped by the occasional obstacle of a decision." ([Holmes], "Review (1877)," 763.)
313. In 1877,1880, and 1881 Holmes likewise commented on "the originality" of the Summary. (Holmes to Langdell [3 March 1877] Oliver W Holmes, Jr., Papers, Harvard law School Library, microfilm reel 14
314. [Holmes], "Review (March 1880)," 233-34; Holmes to Pollock (10 April 1881)
315. Langdell, Summary of Contracts, vi; White, Holmes, 172
316. [Holmes], "Review" (Sept. 1880)