Today in History: November 7

Twenty years ago today, November 7, 1985, the United States Senate confirmed Alex Kozinski to a seat on the U.S. Court of Appeals for the Ninth Circuit.

Kozinski is best known to contracts types as author of the Anti-Traynor casebook staple, Trident Center v. Connecticut General Life Insurance, 847 F.2d 564 (9th Cir. 1988).  As he would later write:

[T]his was an excellent case to point out some of the more absurd aspects of Traynor’s position.  After all, this was not a case involving a little old lady . . . all of whose furniture was repossessed because she missed a payment on the refrigerator.  No, the parties here were sophisticated; they had equal bargaining power; they used lawyers to document their transactions; they left a small patch of Idaho denuded of trees which were felled to paper their deal.  If these folks couldn’t write an agreement that would be binding, who could?  And if we let these folks tell us that language is too uncertain to provide meaningful constraints on their conduct, what does that tell us about all those other words we use to control each other’s behavior?

It struck me that this was the perfect case to provide a counterpoint to Traynor’s high-falutin’ rhetoric. If only I could somehow get this case in front of all those impressionable first-year law students, maybe they’d be less likely to swallow the Gospel according to Saint Traynor.