Guest Post: Jeff Lipshaw on the Restatement Second

Using the Second Restatement
Jeff Lipshaw 

I’ve had, sitting in a computer file for a couple years now, a couple paragraphs I wrote under the heading “but what if?”  I’m not big into classical Socratic method of teaching first-year law (probably because I’m not very good at it) and I admire those who can do it well and, at the same time, keep the attention and focus of the rest of the students not under the gun.  The paragraphs commented on the irony that law professors and law students both tended to pose “but what if” questions, but for diametrically opposed reasons. 

Good Socratic law professors use “but what if” questions to change the facts enough to challenge whether the rule applied in one narrative deserves to be applied in another.  It is a way of demonstrating the synergistic relationship of facts, rules, and outcomes.  Hard cases arise because the new situation may not clearly support the elements of the rule applied in the old situation, or the new situation may provide a basis for a different rule that changes the outcome.  In short, “but what if?” from the professor teaches the very uncertainty (perhaps indeterminacy) of rule-application in new cases.

In my experience, having taught first-year Contracts for almost fifteen years, that is not generally what students are doing when they raise their hand and ask something like, “But, professor, what if Joe’s blood alcohol level when he signed the contract was only .08 rather than .10?” What they want are clear and certain answers, as though every problem can be resolved by filling in a blank or dropping a coin in a slot.

The couple paragraphs were still sitting there when I finished grading my ninety-two contract law exams and submitted grades on May 11.  I always write a post-mortem memo to the students, commenting on common errors and showing some of the best student answers.  As I wrote it, I finally focused on something I’ve ranted about in class but never fully fleshed out to my own satisfaction.  I use the Second Restatement extensively.  Yet, there are rules in the Restatement that don’t really help solve problems.  Instead, they contribute to illusory and futile search for certainty problem. 

The writing bug bit me. The result was “A Law Professor’s Love-Hate Relationship with the Restatement (Second) of Contracts,” now forthcoming in the Journal of Legal Education.

The gist of the argument is that the Restatement contains two different kinds of rules.  I call the first kind, the ones I love, “problem-solving” rules.  That is, they are pithy rules of inference to be used in constructing the modus ponens logic (“if p, then qpq”) of legal theories.  Did Sam make a promise to Jane?  Section 2 provides a perfectly serviceable rule by which one can determine if the antecedent facts satisfy the elements (p) that generate the legal consequence of “promise” (q).  Indeed, my syllabus requires familiarity with almost 100 of such helpful rules.

The second kind, however, the ones that, well, annoy me, are what I call “fit” rules.  They are the legacy of Langdellian (right) conceptual ordering; that is, the construction of a noumenal doctrine that purports to be coherent in the way that, say, quantum mechanics is a coherent theory of sub-atomic particles. There are a number of examples (see §§20(1), 201(1), 234), but the one I take to task in detail (because students find it so fundamental to their own conceptual ordering) is §17(1). This is the seemingly anodyne statement that “the formation of a contract requires a bargain in which there is a manifestation of mutual assent to the exchange and a consideration.”

When students are solving problems, the only value of a fit rule is like the value of their outline checklist: is it helpful in spotting the real issues in dispute between the parties?  But that is often not what happens.  Instead, students read §17 as setting out the order of their answer, and obliging them to expound on the conceptual order rather than solving the problem.  It is an organized shotgun approach.  Some of the buckshot hits the target, and that often generates the middle of the grading curve.  The effect is something that reads like an undergrad essay (or, perhaps, the essay ChatGPT would write!) rather than a legal memo that pinpoints the key strengths or weaknesses of the relevant theories.

The piece, which parses the rules in more detail, is posted as a pre-print on SSRN 

Here is the abstract:

This is one contract law professor’s reflection on his ambivalent relationship with the Restatement (Second) of Contracts. The Restatement’s great pedagogical benefit is that it handily compiles many problem-solving rules taught in the first-year contract law class. Well-crafted student answers use them to respond to the issues embedded in the exam question factual narrative. But the Restatement also includes less helpful sections which tend to exacerbate students’ persistent desire to believe that law is a complete system, existing somewhere out there in Platonic perfection, capable of providing binary or certain answers to every knotty problem. As a result, it also contributes to student exam answers that, instead of solving problems, expound on the relationship of the fact patterns to the grand scheme.

I would love to get reactions.