E. Allan Farnsworth R.I.P.:
The preeminant contracts scholar and Columbia law professor E. Allan Farnsworth died a week ago today. The Sunday New York Times has a nice obituary here
. Another fine obituary here
adds additional details. Allan Farnsworth was the reporter for the Restatement (Second) of Contracts and was the author of the most widely adopted contracts casebook
, a highly respected treatise on contracts
, a monograph on contracts called Changing Your Mind
, and most recently, Alleviating Mistakes: Reversal and Forgiveness For Flawed Perceptions
My first contact with Allan came in 1984 after I reviewed the first edition of his treatise in the Harvard Law Review. My review was entitled "Contract Scholarship and the Reemergence of Normative Legal Philosophy
." My thesis was that developments in jurisprudence away from legal realism made the academic world safer for legal doctrinal scholarship of the sort exemplified by Allan's wonderful new book (After it appeared, I required my students buy it.)
Although my review was a rave, I admit that the bulk of it was about my main thesis. After it appeared, I received a short note from Allan (which so far I have not managed to locate). After graciously thanking me for the kind review, he added--in words far more wry and pithy than I can reconstruct--something like the following: "I know that the price of doing a book review is putting another's work ahead of one's own, but I see that you managed to deal with that problem."
After that, he was always very generous to me, then a junior contracts professor at Chicago-Kent, both in his writings and in person. I fondly recall us getting together years later for drinks in Florida on Longboat Key, where he maintained a condo. In addition to everything else, he was a rather dashing figure.
Fordham law professor Joe Perillo noted on a listserve for contracts professors that "every generation seems to produce a leader in our field of contract law." Yet somehow I doubt that we in contracts will see his like again.
The Questionable Value of Restatements:
Yesterday I noted (here
) the passing of E. Allan Farnsworth who, among his other accomplishments, was the reporter for the Restatement (Second) of Contracts. While I have some strong disagreements with it, I think that the Second Restatement is a masterpiece of neoclassical contract law, blending the best of "classical" formal rules with "neoclassical" qualifications. I simply cannot imagine the present American Law Institute (who produces all the Restatements) improving on it in my professional lifetime.
Having said this, I wonder if the Restatement project has proven to be a good idea. On this issue I am influenced by the skepticism of--nay, downright hostility to--the Restatement project I have heard expressed by contracts professor Marcus Cole
of Stanford. The problem is a contradiction built into the concept of a "Restatement." It is supposed to be "restating" (and systematizing) the law as it has evolved in the common law system--which presupposes that the evolutionary common law process is an important source of wisdom. Yet once promulgated, a Restatement tends to freeze that common law evolution in amber at the moment of its creation. True, Restatements as we all know are more than mere restatements. But whatever "reforms" it may include are themselves also frozen in time.
To the extent state court judges view the Restatement as a safe harbor that insulates them from reversal, they fail to take responsibility for improving the law of contracts as they are confronted with new cases that put stress on old doctrine. To take a concrete example, adding Promissory Estoppel to the first Restatement was an improvement over the Bargain Theory of consideration standing alone. The general formulation of Section 90 allowed judges to reach right results in a highly undertheorized context. By now, however, our decades long experience with the operation of the doctrine--combined with the excellent theorietical and empirical scholarship of recent years--puts courts in an excellent position to provide more rule-like guidance to potential litigants than now provided by the open-ended generalities of Section 90 that say little more to judges than "do the right thing."
Yet there is little incentive for state court judges, with much on their plates and a fear of reversal, to develop such doctrine when the authority of the Restatement is at hand. On balance, I think this is a great loss. The common law evolutionary system is a great source of knowledge that provided much of the substance of both Restatements. But now that flow of knowledge has been reduced to a trickle due, at least in part, to their existence. While some principles of justice are eternal, legal doctrine must evolve to fit these principles to new contexts and provide guidance to other judges, lawyers, and even parties. On balance, I think that the Restatements greatly inhibit this evolution. (I say much more about the need for an evolutionary discovery mechanism in law in Chapter 6 of The Structure of Liberty
If we are going to have a Restatement at all--and we are--I would keep the Restatement Second around for a long time. I have little faith that a committee of law professors today could improve upon it--as witness the debacle of revising Article 2 of the Uniform Commercial Code. But apart from its elegance and admirable substance, another reason for its retention is a dearth of additional evolved judicial wisdom to incorporate into a Restatement Third.
Update: A reader writes in defense of Restatements:
I think you underestimate the value and effect of Restatements. In a state like Utah, Restatements are extremely helpful, in part because there is relatively little case law to draw on within the state. Multi-state surveys are some help, but one is left with little in the
way of guidance about which states the court should or will look to for guidance. The Restatements give reasonably practical guidance on a host of issues. They have declined as a part of legal academics, but from the perspective of practice the restatements are still a positive. I have doubts that trial judges anywhere particularly concern themselves with appellate review. The numbers and process make it sort of unlikely.
Update: Another reader writes (in part):
And when difficult points come up, it is state-court cases deciding them that get cited. I do not think most judges would feel comfortable deciding a case on the authority of a broad statement like section 90 without looking for on-point authority; all the more so for their clerks. And in this process common law gets made, more or less just as it always has. (Which raises another point---did influential treatises predating the Restatements similarly ossify the common law in your view? E.g. Blackstone, Story, Wigmore, Williston. Have the Restatements just taken the role of what used to be single-professor efforts?)
Interesting point. My sense is that the Restatement has far more "authority" than an individual treatise writer, perhaps because of its collective provenance. And I also think that, at least on contracts, a good deal of the caselaw on which courts rely are cases that previously adopted Restatement propositions. This is one reason why portions of the first
Restatement of Contracts remains in effect in some states, having previously been adopted by judges in previous decisions.
Update: For an extention of these concerns to the area of international law see The TransAtlantic Assembly blog.
On his blog Freespace
, Tim Sandefur raises a fundamental challenge to my skepticism of Restatements (which I recommend reading in full):
What I mean is this: my college economics professor, Gary Wolfram, explained to us that the concept of spontaneous order teaches us that we should wait to see the order that arises from people's choices before we make policy, rather than trying to impose policy on people from the top down, on the basis of pure theory. He used to explain it by reference to sidewalks: suppose you want to lay out a college campus, and you want to put in sidewalks that the students will use to go from building to building. The best way, he said, is to wait a few years to see what pathways the students wear into the lawn, and put the sidewalks there, because those are the pathways the students use. Otherwise you'll have sidewalks, and then you'll have these pathways across the lawn where the students actually walk.
But you have to pour out the cement and make those sidewalks at some point. And at any time that you finally decide to pour the sidewalks, there's Randy Barnett saying "wait a second, this is a dynamic process, and if you pour cement here, you're freezing that dynamic process in place, and interfering with spontaneous order." You see my point. Barnett's complaint about the Restatement could be made, with equal validity, of any case that decides any issue in, say, contract law. The judge could say "I'm supposed to be `restating' the law on this issue and applying it to the facts before me, but once I do so, a case tends to freeze the common law evolution in amber."
There is much to be said about what remains fixed and what changes in a dynamic evolving common law system. The doctrine of precedent is an integral part of a common law process (unlike a process that interprets a written constitution), which is analogous to judges pouring the sidewalks. If the doctrine of precedent is considered too strong, however, then courts will not reverse their previous decisions--hence the traditional appeals by common law judges to their legislatures to modify the common law when experience has revealed their precedent to be defective. On this view, judges may pour the sidewalks, but only the legislature can tear them up.
But if precedents can
be reversed then courts are able modify them when new circumstances reveal the limits of previous formulations of legal rules. The main point is that, while legal rules should be "fixed," judges should consider it their
responsibility to repair broken sidewalks they themselves poured, remove unused sidewalks, and lay new ones. The Restatement movement seems to have gotten judges out of this mind set. "That's not my job, let the ALI decide" seems to be a judicial attitude inspired by the Restatements (though I may be wrong about the judicial psychology here). Responsibility for changing the judge-poured sidewalks has shifted from the legislatures to the ALI (which may be a good move) and away from judges themselves (which may be a bad move).
My original point was that the Restatements themselves were NOT based primarily on the wisdom of their drafters--though they do incorporate some "reforms" at the margin--but the wisdom of the common law process, a process that is subsequently curtailed by the existence of Restatements, making any new Restatement more a product of the knowledge of a handful of academics--often motivated by partisan pro- or anti-business concerns--than the diffused knowledge of numerous judges deciding countless cases. Or such is my concern. I remain open to being convinced otherwise, and I thank Tim for his thoughtful response.
More on Restatements
Yesterday a reader sent me a copy of this satire on the Restatements that appeared in the 1994 volume of the Yale Law Journal (104 Yale L.J. 707) entitled, Restatement of Love by Gretchen Craft Rubin and Jamie G. Heller. Here is how it opens:
Custom has long been the authority in matters of love. Men and women have turned almost unthinkingly to tradition and prevailing social norms for guidance in the tender passion. Yet the Bar of late has come to acknowledge that the lack of codification in this realm has left a rent in the otherwise seamless web of the law. To address this gap, the Reporters have set forth the Restatement of Love.
No doubt some will question the departure from tradition that the Restatement of Love represents. Although the legal rules pertaining to marriage, divorce, and estates have been well established, the law's application to a relationship's early stages has hitherto been largely unexplored. Romantic relationships have been presumed unsusceptible to a structure of rules, perhaps because of the widespread belief that love is the most intimate and idiosyncratic of human emotions. The Restatement of Love, however, is premised on the view that love, like all other aspects of human interaction, can be subjected profitably to legal analysis.
Scope of this Restatement. Currently, matters of the heart are governed by a complicated network of unwritten norms that specify the parties' rights and obligations. These mores, though subject to extensive discussion in almost every field of human endeavor, ranging from art to literature to the social sciences, have yet to be put to the rigor of legal scrutiny. The Restatement undertakes this task. It codifies the underlying principles of love and, where appropriate, draws on established legal doctrines from other fields. The claim has been made that "[t]he heart has its reasons, of which reason knows nothing." By distilling a universal, reasoned framework for relations of love, the Restatement will refute this widespread, but mistaken, view.
I also received this amusing response to my earlier post on the Questionable Value of Restatements:
You gotta get out more. Spend some time in states where the judges are political hacks elected to six year terms and the supreme court justices are called the seven potted geraniums. Make common law? These guys don't even know when to pull over at a police stop! Link
I am thrilled we have the Restatements so we have books with sufficent heft to hit the judges over the head with.
[I found almost as interesting the signature in this reader's email:
This information was added
automatically by Mozilla.
It is not intended
to be a signature.
I am not your lawyer.
You are not my client.]
This reminds me of a catty remark I used to hear when at the University of Chicago: Would you really want commercial law made by Cook County Circuit Court judges? Now, I used to be a prosecutor in Cook County, so I know that this attitude is based on fact. Many circuit court judges are hacks or, when I was there during Operation Greylord
But this accusation assumes that state judges are worse today in this regard than they used to be, and I know of no reason to believe this is so. Moreover, legal rules are largely made by appellate courts not trial judges and I think that, whatever their weaknesses, state appellate court judges are not incompetent. More importantly, confronting myriad cases with a duty to dispose of them provides them with pertinant knowledge of the deficiencies of previous rules and the interest to do something about it. And not evey judge need be an innovator for innovation to emerge from a common law system. (Most are not innovators, and we should be grateful for that.) My concern remains that an authority like the Restatement inhibits this evolutionary process--though I could be wrong about this.
Update: To read the story of Operation Greylord you have to scroll well down into the web page. But it is a pretty good summary of what went down.