Reflections
on
Barnett's
Contracts,
Cases
and
Doctrine
CONTRACTS,
CASES
AND
DOCTRINE.
By
Randy
E.
Barnett.f
Boston,
Massachusetts:
Little,
Brown
and
Company,
1995.
Pp.
xxxix,
1309.
Reviewed
by
Michael
B.
Kelly*
On
my
shelf,
I
count
nineteen
different
casebooks
covering
contracts,
not
counting
older
editions
or
multiple
versions
of
a
book.
The
doctrines
they
introduce,
primarily
to first-year
students,
differ
very
little.
The
Uniform
Commercial
Code
does
not
differ
from
text
to text,
though
the
extent
the
authors
advert
to
it
varies.
The
common
law
doctrines
do
not
differ
significantly,
though
the
cases
chosen
to
illustrate
them
vary,
as
does
the
extent
of
reliance
on
the
Restatement
(Second)
of
Contracts
as
a
summary
of
those
doctrines.
Consideration
and
reliance,
material
breach
and
repudiation,
duress
and
fraud,
expectation,
and
reliance
and
restitution
interests
all
emerge
from
every
text.
The
subjects
appear
in
different
orders.
The
cases
differ
(sometimes).
But
on
the
whole,
every
book
treats
the
same
basic
components
of
the
law--components
that
have
not
changed
much
in
the
last
ten
years,
no
matter
what
the
publishers
of
new
editions
may
want
us
to
think.
The
wealth
of
available
materials
drives
authors
to
distinguish
their
casebooks
from
the
rest
of
the
pack.
Some
books
choose
new
formats,
such
as
McKinnon's
looseleaf
approach'
or
the
newly
arrived
electronic
casebooks.'
Some
explore
a
particular
theoretical
approach
to
contract
law,
such
as
Scott
&
Leslie's
focus
on
law
and
economics
3
t
Professor
of
Law,
Boston
University
Law
School.
*
Professor
of
Law, University
of
San
Diego
School
of
Law; B.G.S.
1975,
University
of
Michigan;
M.A.
1980,
University
of
Illinois
at
Chicago;
J.D.
1983,
University
of
Michigan.
Financial
support
from
the University
of
San
Diego
contributed
to
the
successful
completion
of
this
Article.
1.
MATTHEW
C.
MCKINNON,
THE
LAW
OF
CONTRACTS
(1993).
2.
The
electronic
version
of
Barnett's
casebook
arrived
the
day
I
submitted
this
review.
I
do
not
have
enough
experience
with
it
to
venture
comments
at
this time.
3.
ROBERT
E.
SCOTT
&
DOUGLAS
L.
LESLIE,
CONTRACT
LAW
AND
THEORY
(2d
ed.
1993).
Seattle
University
Law
Review
and
MacNeil's
focus
on
a
relational
theory
of
contract
law.'
Some
seek
to
organize
the
material
differently,
such
as
Dawson,
Harvey
&
Henderson's
innovation
putting
remedies
at
the
beginning
of
the
book,'
an
approach
others
now
follow.
6
In
the quest
for
novelty,
I
fear
that
one
vital
component
has
received
less
emphasis
than
it
deserves:
pedagogy.
I
do
not mean
to
imply
that
authors
pay
no
attention
to
pedagogy.
On
the
contrary,
I
suspect
every
author
has
some
pedagogical
purpose
that
motivates,
at
least
in
part,
the
creation
of
new
materials.
But
often
those
pedagogi-
cal
purposes
misfire
in
execution.
Among
other problems,
lack
of
training
in education
may
undermine
good
intentions,
pedagogical
idiosyncrasies
may
emerge,
other
purposes
may interfere
with
pedagogical
goals,
or
collaborations
(contemporaneous
or
posthumous)
may produce
mixed
pedagogical
messages.
These
difficulties
do
not
destroy the
substance
of
the contract
law
presented
in
the
texts.
But
the
materials
chosen often
do
not
facilitate
teaching
first-year
students.
Randy
Barnett's
Contracts,
Cases
and
Doctrine
7
surmounts
these
difficulties.
It
presents
a
relatively
straightforward
set
of
teaching
materials,
aptly
chosen
for
modem
teaching
techniques.
Careful
exposition
of
fundamentals
permits
professors
to
use
class
time
more
productively.
The
concentration
on
fundamentals
also
frees
the
professor
to
choose
the
specific
elaborations
she
finds
most
valuable
for
the
class
or
the
material.
I.
DESCRIPTION
Barnett's
casebook
is
longer
than
many:
1292
pages,
excluding
tables
and
indices,
but
including
a
short
(eight
page)
introduction.'
The
length
results,
at
least
in
part,
from
the
inclusion
of
material
other
texts
sometimes
omit.
Some
of
the
material
is
optional.
Agency
and
tortious
interference
with
contract
are
not
essential
to
understanding
contract
law,
but
they
can
be
important
additions
if
other
courses
no
longer
cover
these
topics.
In
other
sections,
Barnett
offers
an
opportunity
to
explore
a
doctrine
in
more
depth
than
other
casebooks
typically
do.
The
choices
of
topics
naturally
reflect
Barnett's
interests:
4.
IAN
R.
MACNEIL,
EXCHANGE TRANSACTIONS
AND
RELATIONS
(2d
ed.
1978);
see
also
STEWART
MACAULAY,
ET
AL.,
CONTRACTS:
LAW
IN
ACTION
(1995).
5.
JOHN
P.
DAWSON,
ET
AL.,
CONTRACTS:
CASES
AND
COMMENT
(6th
ed.
1993).
6.
See,
e.g.,
MAcCAULAY
ET
AL.,
supra
note
4.
7.
RANDY
E.
BARNETT, CONTRACTS,
CASES
AND
DOCTRINE
(1995).
8.
The
material
teaches
more
quickly
than
the
page
count
might
suggest.
I
covered
1,150
of
those
pages-400
more
than
I
had
ever
covered
with
the
text
I
used
before
Barnett.
Both
texts
were
used
in
a
six
credit,
two
semester
course.
[Vol.
20:343
Reflections
on
Barnett
using
injunctions
to
enforce
personal
service
contracts
(five
cases,
two
case
excerpts,
forty-three
pages
total)
and
using
intention
to
be
legally
bound
to
decide
which
contracts
to
enforce
(Chapter
Ten,
seventy-five
pages,
in
addition
to
references
in
three
other
chapters
covering
consideration
and
reliance).
The
topics
themselves
may
not
require
coverage
this
extensive.
But
extensive
materials draw
students
beneath
the
surface
of
these
topics.
In
this
way,
the
casebook
helps
professors
reveal
some
of
the
complexity
underlying
judicial
opinions.
Barnett
injects
the
same
opportunities
in
other,
less-extensively
covered
topics
by
giving
students
more
of
the
opinion,
an
opinion
following
remand,
excerpts
from
articles
on
the
context
of
the
dispute,
or
one
more
case
than
is
common
in
other
texts.
9
Barnett
uses
the
additional
pages
to
good
purpose.
The
organization
is
well
considered,
though
not
entirely
conven-
tional.
The
basic
structure
begins
with
remedies,
then
proceeds
through
assent,
enforceability
(consideration),
performance
and
breach,
and
concludes
with contract
defenses.
Barnett
makes
several
interest-
ing
judgments
in placing
subjects
within
this framework.
Public
policy
limits
on
the
enforceability
of
promises
appear
in
the
introductory
chapter,
not
the
section
on
defenses.
Interpretation
appears in
the
section
on assent,
drawing
parallels
between
the
existence
of
an
agreement
and
the
meaning
of
the
agreed
terms.
Multiparty
contracts
(third
party
beneficiaries,
assignment,
delegation,
and
agency)
also
appear in
this
section,
rather
than
being
tacked
on
at
the
end
of
the
book.
Barnett
devotes
extensive
coverage
(four
chapters)
to
consider-
ation, beginning
with
a
chapter
on
the
theoretical
underpinnings,
followed by
more
traditional
chapters
on
consideration
and
reliance
surrounding
a
chapter
entitled
"The
Intention
To
Be
Legally
Bound."
The
chapters
on performance
and
breach
cover
the
traditional
topics:
good
faith,
warranties,
prospective
nonperformance,
material
breach
and substantial
performance.
The
chapters
on
defenses
are
divided
into
capacity,
improper
means
(fraud,
duress,
undue
influence,
and
unconscionability),
and
failure
of
basic
assumptions
(mistake,
impracti-
cability,
and
frustration).
Each
unit
(with
a
few
exceptions)
proceeds
in
a
standard
format.
Barnett
introduces
each
case
or article
with
study
questions,
things
for
students
to
consider
as
they
read
the
selection.
The
cases
themselves
9.
See,
e.g.,
BARNETT,
supra
note
7,
at
440-450
(excerpts
from
discussions
in
Grant
Gilmore,
THE
DEATH
OF
CONTRACT,
35-41
(1974)
and
A.W.B.
Simpson, Contracts
for
Cotton
to
Arrive:
The
Case
of
the
Two
Ships
Peerless,
11
CARDOZO
L.
REV.
287 (1989));
Id.
at 697-98
(opinion
of
Alabama Supreme
Court
denying
review
of
Webb
v.
McGowin,
168
So.
199
(Ala.
1936)).
19971
Seattle
University
Law
Review
are
presented
with
only
occasional
notes
or
comments
at
the
end.
After
two
or
three
readings
(often
including
an
article
providing
contextual
material),
Barnett
quotes
pertinent
sections
of
the
Uniform
Commercial
Code
or
the
Restatement
(Second)
of
Contracts,
some-
times
with
comments
or
illustrations.
The
frequent
inclusion
of
the
Uniform
Commercial
Code
makes
it
easy
to
incorporate
that
material
into
the
basic
course
on
contracts.
References
to
three major
horn-
books conclude
each
section.
10
The
case
selection
emphasizes
the
classics,
though
modem
developments
are
thoroughly
represented.
Barnett
reveals
the
origins
of
most
doctrines,
sometimes
with
excerpts
from
scholarly
works,
but
often with
the
leading
cases.
The
historical
flow
of
the
law
emerges
clearly
from the
materials.
The
cases
are
uniformly
well
edited
and
well
chosen.
Barnett
also
prepared
a
thorough
teaching
manual
for
use
with
the
casebook.
It
contains
complete
lesson
plans
for
every
unit
in
the
text
and
for
many
portions
of
the
companion
volume,
Perspectives
on
Contract
Law.
"
The
lesson
plans
are
in
outline
form,
usually
beginning
with
a
question
and
exploring
the
expected
answers.
The
teaching
manual
is
available
on disk
for
those
who
want
to
import
these
outlines
to
their
word processing
program
and
edit
them
for
use
in
class.
II.
PEDAGOGICAL
VALUE
Barnett's
materials
offer
a
number
of
pedagogical
advantages
over
other
materials.
The
structure
of
the
materials
facilitates
the
produc-
tive
use
of
class
time.
The
absence
of
clutter
empowers
professors
to
direct
their
course
along avenues
they
find
most
valuable.
In
discussing
these
two
qualities,
I
find
a
third
point
emerges.
The
depth
of
materials
makes
it
harder
for
students
to
treat the
law
at
a
superficial
level.
While not
discussed
separately,
this
aspect
of
the
book
deserves
note.
By
including
excerpts
from
the
UCC
and
the
Restatement
in
almost
every
section,
Barnett
frees
class
time
to
explore
the
use
of
or
the
rationale
for
the
existing
rules.
The
book
does
not
ask
students
to
10.
E.
ALLAN
FARNSWORTH,
CONTRACTS
(2d
ed.
1990);
JOHN
D.
CALAMARI
&
JOSEPH
M.
PERILLO,
THE
LAW
OF
CONTRACTS
(3d
ed.
1987);
JOHN
E.
MURRAY, MURRAY
ON
CONTRACTS
(3d
ed.
1990).
11.
RANDY
E.
BARNETT,
PERSPECTIVES
ON
CONTRACT LAW
(1995)
[hereinafter
BARNETT,
PERSPECTIVES].
This
work
provides
extensive
excerpts
from
law
review
articles,
designed
to
explore
the
rationales
for
the
doctrines
covered
in
the
casebook-any
contracts
casebook,
not
just
Barnett's.
[Vol.
20:343
1997]
Reflections
on
Barnett
try
to
discern
the
prevailing
rule
from
a
sequence
of
judicial
opinions.
Rather,
it
lays
rules
out
and
illustrates
their
application
with
cases.
Students
come
to
class
with
a
better
grasp
of
the
fundamentals.
This
frees
the professor
to
explore
the
nuances
of
the
material.
Class
time
can
be
devoted
to
honing
more
important
skills:
the
ability
to apply
the
rule
to
different
situations,
the
ability
to evaluate
normative
justifica-
tions
for
the
rule,
and
the
ability
to frame
arguments
that
might
produce
better
rules
or
exceptions
in
subsequent
litigation.
Some
professors may
not
see
this
as
an
advantage.
The
presence
of
the
UCC
or
Restatement
will
not
aid
professors
who
want to
focus
their
course
on
common-law
induction--deriving
rules
from
an
array
of
cases.
(Barnett's
decision
to
put
these
excerpts
at
the
end
of
each
unit
will
not
keep
students
from
reading
the
rule
before
the
professor
can tease
it
out
in
class.)
But
then,
very
few
casebooks
today
are well
suited
for
this
technique.
2
Some
casebooks
reduce
student
exposure
to
excerpts
from
the
UCC
or
the
Restatement
(or even
cases
that
quote
them).
3
But
they
rarely
contain
enough
different
cases (even
counting
note
cases)
to
give
students
sufficient
data points
from
which
to
induce
the
law.
4
12.
Dawson's
casebook
strikes
me
as
a
perfect example
of
this
pedagogical
approach.
DAWSON
ET
AL.,
supra
note
5.
Its
extensive
use
of
note
cases
packed
with
variations
or
even
contradictions
of
principal
cases
offers a
wealth
of
opportunities
for
distinguishing
cases
and
explaining
which
facts
caused
the
variations.
My
limited
knowledge
of
Kessler,
Gilmore &
Kronman
suggests
it belongs
to
the
same
genre.
FRIEDRICH
KESSLER
ET
AL.,
CONTRACTS:
CASES
AND
MATERIALS
(3d
ed.
1986).
13.
For
example, in
Chapter
4
(Policing
the
Bargain)
of
Farnsworth
& Young, citations
to
the
Restatement
(Second)
of
Contracts
are
relatively
rare,
let alone
quotations
of
the rules
presented
in
the
Restatement.
See
E.
ALLAN
FARNSWORTH
&
WILLIAM
F.
YOUNG,
CONTRACTS:
CASES
AND
MATERIALS
324-482
(5th
ed.
1995).
References
to
the
UCC
are
more
common,
but
require
students
to
fird
the
text
in
a
supplement
in
order
to evaluate summaries
of
the
rule
or questions
concerning
how
it
would apply
to
particular
cases.
The
chapter on
contract
defenses in
MCKINNON,
supra
note
1,
is
similarly
sparing
in
citation
to
the Restatement.
Students
can
surmount
these
difficulties,
if
professors
demand
that
students
read
all
pertinent
provisions
of the
UCC
and
the
Restatement
before
class.
By
making the
provisions
part
of
the
text,
Barnett makes
it
more
likely
that
students
will
meet
this demand.
14.
Induction
requires more
than
one
or
two
bits
of
data.
Students
can appreciate
the
importance
of
variations
on
the
facts
only
if
cases
(or
at
least
hypotheticals)
present
a
sufficient
array
of situations in which
the
new
facts
take
on
importance. Fewer
cases
would
suffice
for
a
doctrine
where
courts
produced uniform
results
across an
array
of
factual
situations.
Factual
nuances
would
not
produce different
results,
so
there
would
be
no purpose
in
studying
the
facts
that
might
lead
a
court
to
vary
the
outcome.
Such
bright-line
rules
are
relatively
rare today,
at
least
in
common-law
decisions.
Where
they
exist, they
offer
little
reason
for
extended
study,
particularly
if
a
professor's
objective
is
to
teach
the
techniques
of
common-law
induction.
Students
are
unlikely
to
learn sensitivity
to
subtle
variations
of
facts
in
a
context
where
courts
attach
no
weight
to
these
differences.
Seattle
University
Law Review
The
dearth
of
casebooks
suited to
common-law
induction
reflects
a
decline
in the
importance
of
this
skill
relative
to other
legal
skills.
I
do
not attribute
the
demise
of
the
Socratic
Method to
diminished
student
tolerance
for
teaching
techniques
that
hide
the
ball."
5
The
common
law
itself
is
in
decline.
Codification
has eroded
the number
of
fields
where primary
lawmaking
results
from
common-law
methods.
More
and
more,
students must
learn
to
take
an
authoritative
text
(usually
a
statute
or
administrative
regulation)
and
apply
it
to
a
problem.
6
Divining
the
rule
from
cases
remains
useful,
but
not
central,
to
the
practice
most students
will
face.
Anthony
Kronman's
mourning
for
The
Lost Lawyer"
may
reflect
the
passing
of
common-
law
induction.
Exposure
to
more
cases
might
help
students
develop
the
"good
judgment"
and
"practical
wisdom"
Kronman
misses."
8
To
prepare
students
for
practice
today,
however,
teaching
materials
should
emphasize,
not
merely
include,
skills
of
statutory
construction
and
application.
Arguably,
contract
law
is
not
the
appropriate
course in
which
to
introduce
statutory
application.
The
UCC
has
codified
sales
of
goods,
but
that
subject
frequently
is
covered
in
a
specialized
upper-class
course.
The
common
law
remains
significant
for
most
contracts
in
the
vast majority
of
states.
Thus,
focusing
the
class
on
common-law
techniques
is
a
plausible
choice.
In
a
traditional
first-year
curriculum,
however,
contracts
affords
an
excellent
opportunity
to
introduce
statutory
techniques.
19
Con-
tracts
should
not
become
exclusively
devoted
to
statutory
application
in
the
manner
of,
say,
tax.
But
the
UCC
provides
ample
opportunities
to
apply
a
statutory
text.
Even
the
Restatement,
while
not
a
statute,
provides
rules
that
can
be
explored
in
the
same
way
we
explore
statutes.
Neither
torts
nor
property,
other
staples
of
the
first
year,
seems
as
well
suited
to
the
task.
Until
the
curriculum
adapts
to
15.
I do
not
mean
to
assert
that
asking
students
to
think
through
problems for
themselves
hides
anything.
But
students
may
perceive
it
as
such,
particularly
in
this
context,
where
the
American
Law
Institute
has
performed
much
of
the
induction
in
creating
restatements
of
the
law.
16.
I
am
familiar
with
the
contention
that
no
text
can
ever
be
authoritative.
But
courts
often
treat
texts
as
authoritative.
Students
who
will
practice
law,
rather
than
teach
it,
must study
the
techniques
for
using
statutes
to
support
their
clients'
positions,
including,
perhaps,
the
techniques
for
deconstructing
the
text when
their
clients' fates
so
require.
17.
ANTHONY
KRONMAN,
THE
LOST
LAWYER:
FAILING
IDEALS
OF
THE
LEGAL
PROFESSION
(1993);
see
Gail
Heriot,
Songs
of
Experience,
81
VA.
L.
REV.
1721
(1995).
18.
KRONMAN,
supra
note
17,
at
12.
19.
Other
courses,
particularly Criminal
Law,
also
can
introduce
statutory
techniques.
Civil
Procedure,
once
it
gets
past
jurisdiction,
is
a
likely
candidate.
On
balance,
however,
first-year
courses
are
dominated
by
the common
law.
Introducing
statutory
techniques
in
a
substantive,
private-law,
civil-law course
helps
restore
equilibrium
to
the
curriculum.
[Vol.
20:343
Reflections
on
Barnett
changes
in
modern
practice,
contracts
professors
should
consider
helping
students
prepare
for
practice
in
a
world
of
codes.
Sadly,
many
casebooks
are
caught
in
a
pedagogical
middle ground,
not
well
adapted
either
to
common-law
induction
or
to
statutory
application.
They
fail
to
lay
out
the
existing
doctrine
with
sufficient
clarity
to
allow
students
to
use
that
as
a
starting
point
for
further
discussion.
20
Nor
do
they
contain
enough
case
materials
to
permit
a
meaningful
development
of
inductive
reasoning
as
practiced
in
the
common
law.
Rather
than
permitting
a
professor
to
use
the
materials
in
either
manner,
these
sources
undermine
each
approach.
The
lack
of
clarity
forces
a
professor
to
devote
some
time
to
identifying
the
rule
before
effort
to
apply
it
can
begin.
But
the
sparse
materials
preclude
a
meaningful
exercise
in
inductive
reasoning.
Thus,
for
all
their
substantive
merit,
these
materials
suffer
severe
pedagogical
disadvan-
tages.
Paradoxically,
Barnett's
casebook
may
facilitate
common-law
induction
better
than
many others.
Barnett
occasionally
provides
several
cases
on
the
same
doctrine.
These
units
offer
an
opportunity
to
practice
the
skills
of
common-law
induction.
One
example
has
already
been
mentioned:
the
extended
material
on
the
use
of
injunc-
tions
to
enforce
personal
service
contracts.
Interestingly,
Barnett
does
not
include
Section
367
of the
Restatement
in
this
section,
leaving
ample
room
for
deriving
the
rules
from
the
cases.
Another
opportuni-
ty-my
favorite
for
introducing
this
skill-arises
when
comparing
Mills
v.
Wyman"'
to
Webb
v.
McGowin
2
Here
the
Restatement,
though
clear,
may
miss
important
distinctions
between
the
cases.
Thus,
Barnett's
materials
may
offer
sufficient
opportunities
to
explore
common-law
induction,
though
it
may
not
satisfy
a
professor
intent
on
devoting
the
entire
course
to
this
skill.
Barnett's
materials
shine,
however,
when used
as
a
springboard
for
problems
or
for an
exploration
of
the
policies
underlying
the
rules.
Barnett
lets
the
professor
choose
which
avenue
to
pursue.
He
does
not
provide
a
series
of
problems
in
each
section,
nor
(with
some
excep-
20.
In
an
age
of
hornbooks
and
commercial
outlines,
omitting
the
rule entirely
may
merely
slow
efforts
to
discover
black
letter
rules,
not
prevent
them.
But
impelling
students
toward
hornbooks
does
not
teach
useful
legal
research
skills.
The
time
students
spend
searching
for
and
reading rules
omitted
from
the
text would
be
more productively
spent
thinking
about
legal
problems to
which
the rule
might
be
applied
and
how
the
problems
should
be resolved.
21.
3
Pick.
207
(Mass.
1825),
reprinted
in
BARNETT,
supra
note
7,
at
688.
22.
168 So.
196
(Ala.
App.
1935), reprinted
in
BARNETT,
supra note
7,
at
697.
Barnett
includes
the opinion
of
the
Alabama
Supreme
Court
on
denying
certiorari
in
this
case.
168 So.
199
(Ala.
1936).
19971
Seattle
University
Law
Review
tions)
does
he
offer
extensive
policy
analysis
in
the
text.
I
miss
problems
or
hypotheticals
that
would
allow
students
to
explore
variations
before
coming
to
class.
But
I
find
that
gap
easy
to
fill
from
old
exams.
Note
problems
after
each
case
would improve
the text,
but
perhaps
not
enough to
justify
added
length.
Given
a
choice
between
note
problems
and
sacrificing
the
depth
of
material
presented
in
order
to
make
room
for
them,
Barnett's
choice
is
sound.
I
do
not
miss
notes
exploring
the
policies
underlying
the
rules.
The
Perspectives
23
supplement
provides
ample
opportunity
to
explore
these
topics.
Moreover,
I
find
it
useful
to
ask
students
to
reason
their
way
through
these
issues.
24
(While
common-law
induction
is
in
decline,
reasoned
policy
analysis
remains
vital
to
arguing
many
appellate
cases.)
The
text
provides
the
basic
framework,
facilitating
elaboration
in either
or
both
directions.
Do
not
misunderstand
my
praise
of
the
casebook's
fundamentals:
it
is
not
devoid
of
theory or
of
problems.
One
entire
chapter
(entitled
"Principles
of
Enforceability")
explores
the
theoretical basis
for
enforcing
promises, succinctly
expounding
decades
of
academic
efforts
to
rationalize
the
law's
decisions
about
which
promises
to
enforce.
The
next
three chapters
follow
up
on
these
theories
with
cases
that
exemplify
their
operation
and
allow
students
to
see
how
each
plays
a
role
in
contract
case
law.
Article
excerpts
at
strategic
points,
while
primarily
focused
on
placing
cases
in
context,
often
inject
theoretical
concerns
into
the reading.
2
"
The
cases
themselves
frequently
discuss
the
policy
concerns
in
explaining
the
preference
for
one
rule
or
result
over
another.
26
But
compared
to
many
other
recent
casebooks,
Barnett
devotes more
of
the
reading
to
cases,
statutes,
and
sections
of
the
Restatement.
He
lays
the foundation
upon
which
classroom
discussion
may
build.
The
professor
retains
the
freedom
to design
whatever
structure
she desires
upon
this foundation.
23.
BARNETT,
PERSPECTIVES,
supra
note
11.
24.
One
of
my
colleagues
prefers
a
text
that
includes
policy analysis.
He
finds
students
resist
these
topics
unless
the
text introduces
them. Endorsement
by
the author
reduces
the
tendency
for
students
to dismiss
the
discussion
as
professorial
digression.
Between
the
supplement
and the
sections
in
which
Barnett
plunges
into
policy
concerns,
the
book
establishes
from
the
outset
that
the study
of
law
is
not
limited
to
memorizing
rules.
In
particular,
beginning
the
book
with
a
chapter
covering
public
policy
limits
on
freedom
of
contract
should
set
a
tone
in
which
conflicting
policies
play
a
prominent
role
in
appellate
decisionmaking.
25.
See,
e.g., BARNETT,
supra
note
7,
at
858-66
(excerpts
of
articles
by
Barnett
&
Becker,
Gilmore,
and
Farnsworth
on
the
role
of
reliance
in
the
enforcement
of
promises).
26.
See,
e.g.,
Trident
Center
v.
Connecticut General
Life Insurance
Co.,
847
F.2d
564
(9th
Cir.
1988),
reprinted
in
BARNETT,
supra
note
7,
at
483-90.
[Vol.
20:343
Reflections
on
Barnett
I
find
this
absence
of
clutter
a
strong
advantage
of
the
case-
book.
27
The
book
empowers
professors.
It
allows
them
to
determine
the
direction the
course
will
take.
Many
postmodern
casebooks
constrain
professors
by
proselytizing
for
a
particular
slant
on
contract
law.
Others
clutter
the
text
with
so
many
points
of
view
(of
uneven
worth)
that
they
hamper
efforts
to
help
the
class
form
a
coherent
picture of
contract
law.
Barnett's text
will
not
preclude
a
professor
from
adopting
either
approach.
Proponents
of
the
one
true
way
or
of
the
value
of
every
academic
viewpoint
can
pursue
those
educational
ideals
from
this
casebook.
But
selecting
the
Barnett
casebook
does not
dictate
the
choice.
The
value
of
these
teaching
materials
remains
available
to
all,
not
just
those
who share
a
specialized
view
on
contract
law.
The
absence
of
clutter
should
not
be
confused
with
the
absence
of
insight.
As
with
many
casebook
authors, Barnett
illuminates
contract
law
via
the organization
of
subjects
and
the
choice
of
cases.
I
was
particularly
impressed
by
the
decision
to
group
assent
and
interpretation.
The
link
between
the
questions
"Did
the
parties
agree?"
and
"To
what
did
the
parties
agree?"
emerged
effortlessly
here,
elucidating
both
issues
more
effectively
than
usual.
2
"
The
author's
insight
emerges
quite
clearly
in his
careful
and
extraordinarily
thorough
exposition
of
the
various
bases
for
enforcing promises.
The
decision
to begin
with
remedies,
though
not
unique,
helps
reveal
the
central
role
played
by
the
question
"How
should
the
law
respond
to
this
broken
promise?"
Too
many
authors
allow
students
to
overlook
the
inextrica-
ble link
between
contracts
and
restitution.
29
The
flexibility
of
the
materials
permits
professors
to
pursue
alternative
organizations.
I
differ
with
Barnett
in
a
number
of
organizational
decisions.
I
prefer
to
teach
most
contract
defenses
27.
"Absence"
may be too
strong
a
word.
I
could
quibble
with
one
or
two
of
the
excerpts
Barnett
chose.
But
they
are easy
to skip
without diminishing
the
overall
wealth
of
material
to
which
students
are exposed.
28.
Barnett's
is
not
the
only
casebook
to
juxtapose
assent and
interpretation.
See,
e.g.,
LON
L.
FULLER
&
MELVIN
A.
EISENBERG,
BASIC
CONTRACT
LAW
(6th
ed.
1996);
DAWSON ET
AL.,
supra
note
S.
Having
not
used
either
of
these texts,
my
impression
that
Barnett
makes
the
link
clearer
may
reflect
greater
familiarity
with Barnett
rather
than
any
substantive
difference
between
the
texts.
29.
Even
when
the
law
decides
a
promise
should
not
be enforceable
(e.g.,
due
to
fraud),
remedies such
as
restitution
may
be
available.
Deciding
not
to
enforce
a
promise
does
not
equate
to denying
a
remedy,
only
to
denying
expectation-based
recovery.
If
I
may
inject a
word
of
advice
to
beginning contract
teachers:
Start
the
course
with
remedies.
When
I
started
teaching
contracts,
I
did not
follow
this
advice.
I
was
absolutely certain
that
starting with
remedies
was
a
bad idea.
That
was
a
mistake.
I
have
seen
the
light.
1997]
Seattle
University
Law
Review
immediately
after
consideration.
3
0
I
prefer
to
teach
excuses
(impracti-
cability
and
frustration)
in
connection
with
performance
and
breach
(because
these
defenses
do
not
affect
the
validity
of
the
original
transaction,
but
only
the
obligation
to
continue
performing).
And
I
prefer to
teach
assent after
consideration,
when options
are
easier
for
students
to
understand.
Barnett's
materials
worked perfectly in
the
order
I
selected.
The
units
are
sufficiently
self-contained
that
they
can
be
rearranged
to
suit
idiosyncratic
preferences
such
as
mine.
Each
unit
begins and
progresses
in
a
logical
manner
that
does
not
dictate
a
particular
organization.
Barnett
has
not
eliminated
the
fundamental
dilemma
of
contract
teaching: no
matter
where
you
start,
students
still
need
to
know
something
else
before
they
can
understand
that
unit.
But
Barnett
has
not
interwoven
the
units
inextricably.
Rather,
they
remain
as
distinct
as
the
subject
permits.
III.
CONCLUSION
Randy Barnett
has
prepared
excellent
pedagogical
materials.
The
casebook facilitates
the
valuable
use
of
class
time.
The
book's
clarity
permits students
to
master
much
of the
material
before
class,
allowing
professors
to devote
their
time
to
honing
and
elaborating
on
the
basic
framework.
The
directions
of
elaboration
are
not
dictated
by
any
political
slant
in
the
text.
Rather,
the
clean
presentation
of
fundamen-
tals
leaves
professors
free
to
move
classroom
discussion
in
any
direction
they
desire.
The
wealth
of
material
exceeds
that
of
shorter
casebooks
but
remains surprisingly
manageable
within
normal
course
constraints.
Professor
Barnett
has
not
cured
the
common
cold
or made
legal
education
an
effortless
task
(for
either
students
or
professors).
But
he
has
eliminated
any
need
to
struggle
against
a
casebook's
viewpoint
or
its
gaps.
These
materials
permit
professors
and
students
to
cooperate
in
their
joint
enterprise:
education.
30.
Consideration
rests
on
the
inference
that
each
party
values
what
she
will receive
more
than
what
she
will
give
in exchange
for
it.
The
law's
decision
not
to
question
the
adequacy
of
consideration rests on
the
assumption
that
each
person
is
capable
of
deciding
for
herself
the
value
of the
things
exchanged.
Contract
defenses explore
the
situations
where
that
assumption
may
not
hold
true.
Juxtaposing
them
lends
coherence
to
the
study
of
consideration.
[Vol.
20:343
